Here we stand in 2011. The internet age is at full speed and technological advancements are made at a startling rate. However, devices are not the only advancements that are being made. How we communicate is also rapidly changing. The world of social media is growing and engulfing our daily lives. Sites such as Facebook, Linkedin and Twitter consume hours of our day and the postings that can be found are quite remarkable. The big question is can and more importantly how these postings impact the work place?
Can prospective and current employers check up on employees? Yes, but with limitations. It may be used to verify previous work history and accuracy. Social Media may also be monitored for postings that may be viewed as harassment by other employees. It can also be checked to see if an employee who calls in sick was not out partying the night before. A very large issue is an individual’s right to privacy. Does someone have the right to make postings in confidence that no repercussions may occur? No, once you post an item to the internet it is considered public information.
• Privacy: Has a person’s constitutional right to privacy been violated? It first depends on the individual’s reasonable expectation of privacy and whether that was infringed.
o There remains no established method for determining if a reasonable expectation of privacy was established. Therefore proving their right to privacy has been violated is very difficult.
Many employers are using social media as pre-employment screening. This practice is becoming increasingly popular. In a June 2009 survey of 2,600 companies performed by CareerBuilder.com, 45% of employers stated that they used social media to pre-screen job applicants. Of the employers that said they pre-screened applicants through social media, 35% admitted that they reviewed content on social media sites which caused them to disregard a job applicant for employment. The thing that employers must remember is that you cannot “unsee” what you have discovered in social media. Often times, the information you garner about a job applicant does not create any legal issues. However, knowledge that an individual is within a protected class (be it based on race, religion, or disability) could increase the risk of a discrimination claim if that individual is not hired. It will basically place an employer in a situation where it must provide a non-discriminatory reason as to why a certain individual was not hired. It is very easy to discover such information from a quick review of a Facebook or MySpace page. The applicant’s profile picture can often give away race, ethnicity, and disabilities. In addition, the applicant’s profile may also give religious information and the applicant’s date of birth (bringing age discrimination into the mix as well).
When utilizing social media for pre-employment screening best practices should be considered and policies should be written and implemented. While very few legal guidelines exist in regards to legislation there are still legal implications that can arise if best practices are not followed. Below are nine steps that are recommended to assist in your development of best practices.
• Screen in a consistent and uniform manor – make sure you follow the same process for everyone you are screening. Don’t follow a random process of only checking up on people you think may be hiding something or may have some secret life you think you should know about.
• Screen the same sites for everyone and maintain the list of sites you screen – determine which sites you think are the most relevant to look at (Linked In, Quora, Spoke, Twitter, etc) and don’t alter the list just because of the candidate. In other words – if you feel like Facebook is really a social environment without much relevant job information – don’t suddenly search it for the candidate that has a funny tattoo.
• Pre define the types of information you are screening for and the criteria used for screening – This is a KEY point: You are looking for relevant, work related information only. You probably don’t need to know about someone’s partying habits, but you probably do need to know about threats of violence, hate messages against minorities or ethnic groups, a pattern of disparaging comments about previous employers, or misleading information about their college degree.
• If you don’t plan to screen everyone, be clear and consistent about what groups you are not screening – like all background checking, social media is not that different in a case like this. You don’t have to screen all job categories, but be clear (and document) why you screen some and not others.
• Have a neutral party do the screening to avoid hiring manager seeing protected data (age, race, religion, health conditions, etc.) – The fundamental point here is – if you are going to look at data on a social media site – you will see more than you need to. To avoid that risk – use a third party that will filter out that data.
• DO NOT friend an applicant – this is fraught with all kinds of problems. Not only does it provide you access to information you do not need to know, it opens up all kinds of issues with privacy, harassment, etc.
• View only publicly available information – most of what you need to know can be found in the public data. No need to ask for an applicant’s access or password, or to friend or “connect” with them to see additional data.
• If you use social media data to reject an applicant, point to clear, legitimate hiring requirements for reason to not hire (e.g. poor judgment) – your reason for not hiring someone should be sound. Enough said. Social media data is no exception.
• Gain applicant’s consent – it really is a good idea to follow the same notice and disclosure policies you would with any pre employment screen. Let the applicant know you will be checking their social media footprint and gain their consent.
Sources:
Thuber, J (2011, April 9). 9 Steps if Considering Social Media in Pre-Employment Screening. http://hrtoolbox.com. Retrieved August,4, 2011, http://hr.toolbox.com/blogs/musing-on-preemployment-screening/9-steps-if-considering-social-media-in-pre-employment-screening-45441
Sherwood, M (2011, March 21). Social Media in the Workplace: Pre-Employment Screening. www.unlaw.com. Retrieved August 4, 2011, http://www.uwlaw.com/articles/SOCIALMEDIAINTHEWORKPLACEPREEMPLOYMENTSCREEN.htm
Saper, D (2009, April 6). An Introduction to Legal Issues Surrounding Social Media. www.saperlaw.com. Retrieved August 4, 2011, http://www.slideshare.net/DaliahSaper/legal-implications-of-social-media
