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When a hiring partner learns something revealing about job candidates by scouring their social media accounts, is that a good thing?

Not always, according to the warnings some employment lawyers have started to issue to their corporate clients.

“There are some serious repercussions of having employers cyber sleuth on social media,” said Jason Habinsky, a partner in the New York office of Haynes and Boone, who practices labor and employment law, echoing the sentiments of his peers at other firms.

By perusing social media, a hiring manager who makes the decision “loses the right to claim he never looked into information” about a candidate belonging to a demographic category protected by anti-discrimination laws, Habinsky said.

That’s one reason employment lawyers have begun to encourage, or at least ask clients to consider, having hiring partners and direct managers walled off from their subordinates’ social media accounts.

Why? “You can’t un-ring that bell,” Habinsky said.

Some clients—and possibly law firms, although Habinsky declined to detail his firm’s policies—have begun allowing only designated human resources professionals or outside agencies to scour job candidates’ accounts. “They raise only the red flags that the companies feel like is really important to know,” Habinsky said.

Other clients of his are willing to take the risk of bumping into information that may identify a prospect or employee as part of a protected class. And the information they find isn’t always used to weed out candidates. “They gather information that is advantageous to the employee—they have a lot of friends, they commit time to charitable causes,” Habinsky said.

Decisions related to candidates’ social media accounts—to snoop or not to snoop—often hinge on an employer’s risk threshold, he said.

Richard Glovsky, an employment lawyer and a partner in Locke Lord’s Boston office, said the notion of designated HR people serving as human screens struck him as overkill. The chances are slim that discrimination claims would arise from an applicant who was screened via social media, he said.

Most discrimination cases are filed by plaintiffs against an employer who hired them, not one who turned them down, Glovsky said. “Is it worth going through all those gymnastics when the chances are slight?” he asked.

Such screening also would be only “partially effective,” since in the age of 24/7 millennial web-monitoring, the odds remain high that a manager will hear about a prospect’s social media extremes indirectly. “I think you can go too far with some of this stuff,” Glovsky said.

Meanwhile, looming new laws in San Francisco, New York, Massachusetts, and other cities that bar employers from asking prospects about their prior salaries also bar them from snooping around the internet for such information.

According to Bruce Millman, the office managing shareholder at the New York office of Littler Mendelson, “doing any kind of review is fraught with possibilities of violating the law.” The new rules only raise those risks—and that may be a rationale for challenging them, he said.

Miriam Rozen covers the business of law with a focus on law firm-client relationships. Contact her at mrozen@alm.com. Twitter: @MiriamRozen.

 

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