Most employers are doing it. Few admit to it, and even fewer have considered the legal implications.

Companies are mining the Internet and social media for information about job applicants that can’t be found on a résumé. The problem is that Internet searches turn up a lot of other information normally off-limits to employers in making hiring decisions.

A Facebook post discussing religion, a photo of someone sporting a gay pride T-shirt or an announcement that “We’re pregnant!” are commonplace on social media sites, but if a hiring manager sees it, does it seep into the decision-making process?

“Employers should be careful what they wish for, because they might find that information and much more,” said Daniel A. Schwartz, a partner at Pullman & Comley in Hartford, Conn., who represents employers.

Some employment lawyers say it’s only a matter of time before they start seeing failure-to-hire claims based on discriminatory reasons due to information found on social media sites.

In one recent case, a professor of astronomy sued the University of Kentucky when he was denied a job after the hiring committee found articles he wrote suggesting he might believe in creationism. That suit settled earlier this year for $125,000.

The EEOC has recently expressed interest in clamping down on other types of job screens, such as background and criminal checks, as well as discrimination in hiring of unemployed applicants.

While failure-to-hire claims are difficult to prove, partly because an applicant doesn’t know the reason for the rejection, attorneys say employers should have systems in place for social media mining of job applicants so it’s handled the same way in every case. They also recommend telling job applicants they will be Googled.

Best practices

While companies have made a big push recently to implement social media policies for employees, they are just beginning to think about creating policies for their own data-mining of job applicants.

Lawyers who represent employers advise that an Internet search of a job candidate be completed late in the process, not as a first step.

“If you start looking at Facebook and Twitter, you’re going to find out a person’s age, ethnicity and if they belong to a gay rights organization. Some employers have a policy that they don’t do that stuff until after the first in-person interview,” said D. Jill Pugh, an employment lawyer who represents plaintiffs and small employers in Seattle.

The person performing the online search should be a human resources professional, not a hiring manager, supervisor or the person making the hiring decision.

“People in human resources have a greater understanding oftentimes of specific laws and what they can and can’t take into consideration,” said Pamela Quigley Devata, a partner at Seyfarth Shaw in Chicago, who advises employers.

This also prevents a decision maker from seeing prohibited information.

“It creates a little bit of a wall. If you have somebody responsible doing the searching, they only pass on legally relevant information to the people making the [hiring] decisions,” said Jennifer G. Redmond, a partner at Sheppard, Mullin, Richter & Hampton in San Francisco.

Margaret M. DiBianca, an associate at Young, Conaway, Stargatt & Taylor in Wilmington, Del., who has blogged and spoken on this topic, agreed.

“You can’t unring the bell. In reality you can’t segregate something out if it’s in your mind. This way, it’ll never be in their mind,” she said.

DiBianca advises employers to come up with a list of screens for the data-digger to look for, and to run that list by their lawyer.

The list may be job-specific, but could include the following types of questions: Has the person discussed confidential employer information or trade secrets online? Is there any evidence of illegal drug use based on social media postings? Has the person made any threats or committed violence against others? Has the candidate used racist or sexist language?

How much to spill

Attorneys who represent employers recommend telling job seekers that they are conducting social media screening, but disagree on how far to go.

If an employer doesn’t do it for all candidates, or only for the final candidates in contention for a position, DiBianca suggests that it inform potential employees: “We reserve the right to do an Internet search for some candidates.”

Schwartz also suggests that employers have job applicants sign off that they agree to Internet searches including social media.

Any kind of covert “friending” under false pretenses or by gaining access through a current employee who recommended the applicant is a major no-no.

“That runs afoul of the Stored Communi-cations Act and is big-time problematic,” said DiBianca.

She also disfavors a practice that has been in vogue in some industries where mid-interview, a human resources person led the job seeker to her side of the desk and asked him to log into his Facebook account.

But DiBianca sees nothing wrong with asking an applicant to accept a friend request from a potential employer for 24 hours, as long as the employer tells the applicant the list of things for which it will be searching.

Schwartz agrees, but advises that the employer “give the applicant some time to clean up the site.”

Devata thinks that is a bad idea.

“It’s a very slippery slope to ask to friend [a job applicant]. Facebook and social networking sites are just that. They’re social. Employers really don’t want to know about, or legally cannot know about, protected-category information like familial status, sexual orientation, political beliefs – all things that are centers of discussion around many social media sites,” Devata said.

Without a lot of caselaw in this area, lawyers are advising employers to treat social media screening like background screening is handled under the Fair Credit Reporting Act, which requires permission from the job seeker, as well as notice and the opportunity to dispute adverse information.

If an employer decides not to hire based on what it found on an Internet or social media site, lawyers recommend disclosing it to the job applicant.

“Show the applicant, ‘Here’s a screen shot of the racist language that appears to be posted,’ and give them a meaningful opportunity to respond,” said DiBianca.

“They may say, ‘What are you talking about? That’s not even me,’” said Devata.