Petrogram - Spring 2015 - (Page 19) Legal BRIEF Making Hiring Decisions Using Social Media By Lourdes Espino Wydler, Esq. D ata obtained through social media is as permanent as an email sent twenty years ago. The question faced by business owners is whether using the information that is public on the internet helps or hurts when making employment decisions. Viewing an online profile can provide details about a candidate that may not have been known from an employment application, resume or even an interview. Employment practices should be implemented when dealing with available social media platforms to avoid liability. Using Facebook, Twitter, or Instagram can be considered an inexpensive way to conduct a background check by some C-Stores. However, like every employment decision, hiring or rejecting an employment applicant must be made for a legitimate business reason and not for any discriminatory purpose. For example, an employer cannot deny an interview to a pregnant candidate based on a photo from Facebook. The purpose of any internet investigation should be to determine a candidate's qualifications and experience. If social media is going to be used to help decide who will work at a C-Store, the best practice is to use a professional company that will provide decision-makers with that information and prevent the business from obtaining information that could violate federal or state law. Advising an applicant and obtaining a background investigation release may be required depending on the information sought. Pre-employment screening by a third party can be worth the reasonable cost associated with the service since most retail employees have to be trained, are entrusted with cash transactions, and are responsible for inventory. Even though most employees at a gas station C-Store are minimum wage employees, these individuals spend a significant amount of time at the station and directly interact with customers. Using a store manager instead of an outside company or a corporate human resource professional to conduct these searches may prove to be more costly, if the wrong individual is hired or if someone is denied employment for the wrong reasons. In most cases, a C-Store manager or owner will be the person who conducts any investigation about a prospective employee. It is important that if social media is going to be utilized in making a decision, the policy must be consistent across the board. This means that management cannot selectively decide when or whom to search for online. The same investigation must be done for everyone. For instance, if there is a job opening where multiple people apply, but only the applicant with an ethnic last name is searched over the internet, this could be considered an illegal employment practice assuming the applicant was not offered a position because of national origin. It is recommended that any Internet search about a candidate should be conducted after a face-to-face interview. At an interview, membership to some protected classes become known. There is no requirement to grant an interview to every applicant, but there is additional information that can be learned like a person's race or age from a photo found on a search through a social networking site. When using social media as a hiring tool, applying this procedure could protect the decision-maker from any perceived illegal hiring practice. Assuming social media is part of an employer's hiring equation, it is critical to document the reasons why a candidate may be rejected. Print the web pages that were viewed because information can later be edited. Anonymity on the internet is less prevalent today. In fact, some social networking sites send notifications about the identity of profile viewers. Once an online profile is viewed, a presumption can be found by a court that the viewer was aware of an applicant's protected status like religion or sexual orientation if the applicant was not hired. While some businesses may utilize the benefit of social media resources, the practice comes with some risk. While some businesses may utilize the benefit of social media resources, the practice comes with some risk. Information obtained through social media will impact other employment actions like discipline and termination that will prompt the establishment of guidelines. The courts will develop more bright-line rules as litigation continues in this area. For now, hiring based on information acquired from social media sites remains a nebulous area of the law that can place a business in legal jeopardy. ❍ Lourdes Wydler, Esq. is a partner at Marrero & Wydler, a law firm concentrating its practice in personal injury, negligent security, liquor liability, and employment law. lew@marrerolegal.com. Petrogram | Spring 2015 | 19 Table of Contents for the Digital Edition of Petrogram - Spring 2015 Chair’s Perspective By Noel D. Hardy, FPMA Chair Alternative Fuels: A Glimpse Into the Future By John Eichberger Endless Possibilities for C-Store Food Programs By Al Hebert UST Owners & Operators: Don’t Miss the Train! By Amy Bell 5 Ways to Stop Wasting Cash in Inventory By Betsi Bixby Member Spotlight Marci Fechter, Sales Manager Southeast Region, f’real foods Making Hiring Decisions Using Social Media By Lourdes Espino Wydler, Esq. 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