October 12, 2010
Social Media is everywhere. It’s on your phone; it’s in the news; it’s in your company handbook; it’s even at the box office. So how, when making hiring decisions, do you shut out one of the loudest voices in our world today to make a legal decision? Is it even necessary?
We’ve all done it: Google’d ourselves, set up news alerts for our name or business, but is it okay with Uncle Sam to do the same for our applicants? Will your next Facebook friend request come from an applicant’s lawyer if you peruse her page then pass on employment?
Afterall, a Facebook basic profile almost matches the list of things you can’t ask in an interview: race, religion, sexual orientation and relationship status. How can you “forget” the perfect candidate is now bipolar, pregnant or a raging alcoholic?
You don’t. Kind of.
(Note: This is the part where we warn applicants to set their privacy settings and delete all of the photos you wouldn’t show Mom and Grandma over Thanksgiving dinner. You know, that disclaimer they’ve received 1,000 times, yet we still find red solo cups and naked Twister pictures all over the World Wide Web.)
Nancy Schess, an attorney with Klein Zelman Rothermal, explains that the use of social media is an appropriate approach, as long as it’s done in an acceptable way. Her advice?
- Someone not involved in the employment decision should perform the online search
- No “protected information” (i.e. race, religion, sexual orientation, etc.) should be shared with those making the hiring decisions; educational background and work experience are fair game
- Prohibit those involved in hiring decisions from conducting online searches of potential employees in supervisory and managerial training (yes, another HR policy)
The legal ground is grey. Especially since prospective employees are the ones posting the “protected information” appearing on social media sites. This information is protected by the Federal Equal Employment Laws (starting with the Civil Rights Act of 1964) which prohibit employment discrimination against qualified individuals with disabilities, and bias against applicants based on race, color, religion, sex, national origin, age and other factors. And where you do business could mean even stricter regulations, as laws vary on local and state levels.
But isn’t a quick social media search just an extension of the background check we’re already running? Yes and no. Under the Fair Credit Reporting Act (FCRA), if an employer uses a third-party to conduct a background check, it still must comply with the FCRA, meaning applicants must consent to employers running credit history or consumer reports. The FCRA is “mums the word” on policies surrounding checking social networking sites for information, so it’d be safest to notify applicants that these sites may be screened as part of the process (read: get rid of those college party pictures).
Social Media has even faced the jury. The verdict? Lukewarm. Constitutional issues over freedom of speech and association are red flags in the hiring process, but courts have been fairly passive on such claims…so far.
According to Jump Start Social Media, as many as 75 percent of hiring managers use LinkedIn on a regular basis to research candidates before making an offer; 48 percent use Facebook, and 26 percent use Twitter. Social media sites are great resources to learn more about candidates’ professional experience and how their skills and qualifications can help your business excel. But the buck stops there.
“Social Media is an issue in the HR and Employment and Compliance law – the protected information on people’s profiles is free, easy and voluntary,” said Schess. “The questions to ask are: a) is it legal, and b) is it a best practice to go and look for this information in the context of your hiring practice.”
Your business has to decide what’s best for your business. Just make sure it’s the same policy and procedure for each and every candidate.
And take down those Slip ‘n Slide pictures from Freshman year already.
The PeopleMatter Institute