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February 04, 2014

According to Staff.com, 92 percent of companies use social media for recruiting. They tweet and post about jobs, create links on their web sites to the company’s social profiles, create videos about company culture that are shared socially and more. However, many companies also use social networks for employee screening and that has caused some controversy.

Social media has afforded people multiple opportunities to share personal information with their friends, family and other “followers.” We share photos of our children, where we enjoy coffee, a great New York Times article we just read, and how we are feeling about anything from the latest football game to a recent visit from a relative. But how much of this social sharing is fair game for employers as they screen applicants before having them become employees? That is a debate that is raging throughout the country and something our team works closely with companies to figure out. Here are three main issues you must consider before using social media as part of your employee screening process.


What’s the Password?

Using social media for background checks is a common, though controversial, practice. It may surprise you to learn that there are companies out there…many of them…that require employees to provide their social media account user names and passwords. It’s all done under the veil of confidentiality, meaning the company promises never to disclose that information. However, the result is that a company has unfettered access to all of an employee’s social media activity. They can see all the public postings as well as the private, or “hidden, ” information that is part of a social profile. And it is the latter that can get a company in a great deal of legal trouble.


Personal Information Used for Employment Decisions

Social media profiles can contain information such as sexual orientation, religious beliefs, political affiliation, and group membership. If a company has access to a job candidate’s or current employee’s social profiles, the company has now opened itself up to claims of discrimination simply because they had access to information for which it is illegal to fire someone. It wouldn’t matter that the company terminated the employee for performance or other legal reasons. The possibility would exist of a claim of discrimination based on social media information.


New State Social Media Screening Laws

As a result of companies asking job candidates and employees for social media profile log-in information, there are 36 states that have enacted or are in the process of enacting social media screening laws that prohibit employers from requiring access to employees’ social media accounts. This includes any requirement that an employee allow the company or another company employee to “follow” them, which would allow for screening of activity. The laws are already active in twelve states. Our recommendation is…just don’t do it. If it is not a law in your state now, it’s likely going to be soon. Social media can be a good source for researching a potential employee but, we recommend strongly that companies rely on publicly available information. Even there, though, there are guidelines to follow.


Set a Social Media Policy and Be Consistent

While private information is clearly seen by most companies as off limits, public information available via social media profiles would seem to be fair game. Caution! The information may indeed be permissible as you screen job candidates but, if you are not consistent on what you review and what information you use, there is a strong possibility that you can find yourself facing a discrimination lawsuit. Let me explain:

Candidate A applies for a job. You tell that person that part of the screening process is a review of their publicly available social media profiles and postings. They say they understand. So, you review Candidate A’s Facebook account. Candidate B applies for the job and this time you set up an interview with the candidate. After the interview, you look at his Facebook, LinkedIn, Twitter and Pinterest profiles. For whatever reason, you offer the job to Candidate A. Because you varied the types of searches and the point in time in the recruiting process that you looked at their social media accounts, you are being inconsistent. The inconsistency is what may lead to claims of discrimination.

Pinkerton’s Employment Screening team works with companies year-round to develop comprehensive social media policies as they relate to employee screening. We tell them  that they must have a clearly communicated, detailed policy that defines the company’s social media screening policy. We stress waiting until after you’ve met a candidate face to face before reviewing their social media accounts. It is better to wait until after you’ve interviewed a candidate, then to rely only on what you’ve seen from their social media accounts only. Most importantly, make sure you have a consistent screening process and review for the same criteria each time.


Train Those at Risk of Putting You at Risk

Social media laws are changing all the time as the government works to protect employees’ rights while also creating safeguards for employers. The risk landscape changes so often that a company must be consistently updating and training those employees in a position of inadvertently doing the wrong thing due to lack of current knowledge. If your front-line human resources and loss prevention people aren’t current with updates to State and Federal laws, how can you expect them to do their jobs based on those laws? You can’t. Part of our mission is to stay abreast of all the laws affecting employment practices so that our clients can use us as a resource. However, it is critical for a company to take the information we give them and get it to the people who need it…today!

To date, there aren't a lot of social media screening case laws out there providing precedents so a lot of this is being created on the fly. That makes for a difficult situation if a company must try to defend its actions. Knowing the laws, creating and updating a consistently followed social media policy and training the front-line screening staff will be three large steps towards protecting your company in this increasingly social world.

Visit our employee screening page for more information.


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