Applicant Screening Laws Surveys and informal data suggest that employers are increasingly using the web and social media sites to both identify and recruit desirable job candidates, as well as to weed out less desirable candidates. Just as there are legal limitations to screening applicants through more traditional methods, legal issues are likely to arise when applicants are screened online. For example, recently there has been litigation around whether placing job advertisements on social media in order to attract younger applicants violates age discrimination laws. The following section summarizes some of the special applicant screening laws that may be triggered by online screening of job applicants. Negligent Hiring. In Minnesota, an employer can be liable for negligent hiring if it “places a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of employment, it should have been foreseeable that the hired individual posed a threat of injury to others.” Ponticas v. Investments , 331 N.W.2d 907, 911 (Minn. 1983). Employers have a “duty to exercise reasonable care in view of all the circumstances in hiring individuals who, because of the employment, may pose a threat of injury to members of the public.” Ponticas , 331 N.W.2d at 911. This has come to be known as a sliding scale duty, requiring the employer to decide how much investigation is necessary based on the nature of the position. Because of this potential liability, it is sometimes appropriate for an employer, depending on their business and a particular position’s duties, to do a more thorough screening of an applicant’s background to try to ensure that the individual does not pose a safety risk or other risks to the business or third parties. Historically, the doctrine of negligent hiring has resulted in employers considering whether it is appropriate to run a criminal background check on applicants. As social media becomes more common, it is possible, although not yet known, whether the scope of an employer’s duty to investigate job applicants for safety risks may extend to conducting social media or other online searches.
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