Q. We did a Google search on someone we wanted to hire and we found several pictures of the individual smoking and drinking alcohol at bars. We had wanted to hire this employee for a position in which he will work closely with clients and now we are having second thoughts. We certainly do not want him to smell like smoke when he meets with clients. Is there any legal problem with not hiring him?
A. Employers that use the web or social media sites to screen applicants may find pictures of them drinking, smoking or otherwise engaging in lawful activities of which you don’t approve.
However, Minnesota law prohibits employers from refusing to hire an applicant or taking adverse action against an employee for the consumption of lawful products such as alcohol or tobacco, away from work during nonworking hours.
Other states have similar laws, and some states have even broader laws that prohibit adverse action based on other lawful activities, such as an individual’s appearance, political affiliations or other factors.
The Minnesota law provides exceptions if the restriction is based on a bona fide occupational requirement or is necessary to avoid a conflict of interest with any responsibilities owed by the employee to the employer. For example, this exception might apply if your organization provides counseling to help people stop smoking or drinking or if your organization’s mission is related to the reduction of alcohol and tobacco use.
Generally speaking, however, it is likely unlawful for you not to hire this person because he smokes and drinks during nonworking hours.
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