Using social media in the recruiting and hiring process of employee candidates has become routine these days. With the start of the new year, many employers have developed strategic plans to expand and increase their workforce. Before diving right into a massive hiring effort, employers should review the following keys to using social media within the law.
DIY or Use An Agency?
Perhaps one of the first decisions is whether the company will rely on a third-party service to conduct background checks, including social media checks, on employment candidates, or if the company will use its own internal resources (HR folks, hiring managers) to conduct such checks.
In the United States, if the company uses a third-party service, then it must comply with the Fair Credit Reporting Act (FCRA). Under the FCRA, employers must provide to job applicants (and employees) a disclosure that a consumer report/background check will be performed, and the employer should obtain the individual’s authorization to proceed with the check. Furthermore, the employer must provide notice to the individual if it will take adverse action (not hire the individual, for example), before the employer takes that action. The FCRA also requires an employer to provide a post-adverse action notice as well.
Conversely, the FCRA requirements do not apply to employers who perform their own background checks without using a consumer-reporting agency to obtain the information. Thus, for example, if the employer’s own human resources personnel, or if the hiring manager, performs social media research on a job applicant, the FCRA does not apply to those actions.
And, if companies believe they can get around the FCRA requirements by using third-party software “applications”, think again. The Federal Trade Commission (FTC) has warned several of the companies providing those smartphone applications that they may be subject to the FCRA. As a result, employers should monitor the “apps” they are using to learn whether the FTC has found them to fall under FCRA regulation. Simply, as the law evolves, so must employer behavior.
Avoid Discrimination Claims
There are categories of information that are simply off-limits for employers to consider when evaluating a job candidate. Employers have been condition that they should not ask “taboo” questions during interviews, including questions about religion, disability, family and children, age, and sexual preference, to name just a few. These laws apply to social media background checks as well.
By reviewing social networking profiles and information, employers are learning about job applicants’ religious beliefs, marital status, family relationships, race, ethnicity, medical conditions, and other information that cannot be used to make an employment-based decision — the “taboo” information.
As a result, employers must take care when performing such research. Ultimately, should a discrimination claim arise, the employer will have the burden of proof to demonstrate that the decision to reject a job applicant was based on a legitimate non-discriminatory reason, rather than the fact that the employer learned of the job applicant’s sexual orientation, the projected due date of the job applicant’s baby, or any other protected characteristic.
Segregate taboo information
One practical method is to only allow someone who is not involved in the hiring of the specific position to be the person who conducts the social media background check. Then, when the social media background check is completed, that person can summarize the job-related information that may be helpful in considering the applicant, and can make no mention of the “protected” information (race, religion, medical condition, etc.) that would otherwise get the employer into trouble. This way, the hiring manager, or ultimate decision-maker, receives only the job-related information, and can demonstrate that the information unknown to him or her had nothing to do with the decision to hire another candidate.
Furthermore, before the job opening is even posted, employers should be clear about what they are really looking for in a social media background check, and whether it is necessary for the particular position. For example, the importance and extent of a social media background may depend on the position the company needs to fill (for example, a CFO position versus a seasonal stockroom employee). Certainly, employers should doing enough pre-hiring due diligence to avoid potential claims of negligent hiring, but they must balance those concerns with finding out information that exposes them to liability for discrimination.
Be consistent across the board
In addition, the company should be consistent. If the employer checking the social media background of one candidate, then the employer should take the same approach to all other candidates for that job position.
Also, the company should be sure to perform the social media check during the same stage of each candidate’s hiring stream. For example, it may cause concern if the social media check is done pre-interview for some, and then post-interview for other candidates.
Furthermore, the company should be sure to have a set process for conducting the social media check. This process should be consistently followed – this may mean that the exact same social networking sites will be examined for all candidates, for example. And, the company should be sure to save/print screen shots of the relevant social media activity that will be used when considering each candidate.
Avoid Privacy Claims
In addition to steering away from collecting the taboo information, employers should avoid taking action that may give rise to privacy claims. First, employers should not ask for the social media passwords/login credentials for job candidates. According to the National Conference of State Legislatures, most states have passed legislation prohibiting (or severely) limiting this practice.
Furthermore, while not mandatory unless described under the FCRA above, companies may want to give job candidates a notice that the company will conduct a social media background check of publicly available social media activity during the hiring process.
In this day and age, it could be seen as “negligent” for an employer to NOT engage in such social media background searching. Simply, with the prevalence of social media, and the wealth of information it can provide, employers would be wise to tighten up their processes for obtaining and using such information within the ever-changing legal landscape.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation. No attorney-client relationship is created via this website.