Karen Lundquist is an attorney and owner of Attenza Law, LLC. She offers a unique blend of law, languages and cultural awareness to her clients. Karen graduated cum laude from William Mitchell College of Law and has experience working in employment law and business law matters with the firm’s small and medium-sized business clients. She speaks Italian and Spanish, and has lived abroad in both Italy, Mexico and Chile for a combined total of almost 13 years. This experience has provided her a unique insight and understanding of other cultures that enhances success for clients as they venture into an international market. Karen is also an adjunct professor at William Mitchell College of Law and acts as the co-director of the Business Practicum course. For six years, she was also the coordinator of the Summer Institute on American Law, a study abroad program for foreign legal practitioners hosted by William Mitchell. More and employers are using the Internet and social networking sites like Facebook, Twitter and blogs to screen job applicants or monitor employees. But do employers risk running afoul of the law when doing so? The answer is yes.
Social Media + Employer = A Legal Conundrum
By Karen Lundquist A business might choose to interview only applicants who have an online presence, whether through a Facebook or MySpace profile or a LinkedIn account. It might seem like an easy way to make an initial cut of applicants, especially in today’s job market where there are 6 applicants for every open position. However, the employer who chooses this approach risks discriminating on the basis of disparate impact. Unlike “regular” discrimination, where an employer treats someone differently because of a protected class like sex, race or religion, disparate impact is when an employer has a policy that doesn’t look discriminatory, like interviewing only those applicants with an online presence, that has an unintended discriminatory impact on a group of applicants. A recent study showed that just 46.4% of black Americans were online in 2008, behind the 56.5% of Hispanics and 70% of white and Asian Americans who are online. As you can see, this type of policy risks having an unintended discriminatory impact on minority applicants because they aren’t online as much. Aside from disparate impact discrimination, an employer risks violating anti-discrimination laws by accessing personal information that can be found on social networking sites. If an employer learns that an applicant is disabled, a minority, or of a political party that the interview doesn’t agree with, will that information, even subconsciously, be used in the decision to interview or hire an individual? It shouldn’t be and it is best not to know any of this personal information about an applicant. Just as it isn’t appropriate in an interview to ask an applicant if he is married or what her religion is, it isn’t appropriate to learn this information through other means, even those that are easily available online. Finally, it has been shown that 44% of employers won’t hire an applicant because of online content that shows the applicant using alcohol or drugs or even smoking. In Minnesota, this can be illegal. Minnesota law states that an employer cannot refuse to hire an applicant, or even discharge or discipline an employee, because of an individual’s “use and enjoyment” or lawful products such as alcohol, tobacco or food. This doesn’t include illegal substances. So even if you don’t like to be around smokers or are a teetotaler, this isn’t (usually) a reason not to hire someone. The lesson? Judge, hire and discipline applicants and employees for their skills and abilities, not their personal life, their personal information or other protected classes.