If you do use it to recruit, you must make sure the contents of your advertisements conform to all types of regulations.
If you use it to investigate the background of individuals, you have to be aware that what you find out doesn’t open up the potential of a lawsuit based on knowledge of an individual’s membership in a protected group.
Part of the complexity of the situation is that neither courts nor legislative bodies have really addressed the issue. And in a survey done by the Society for Human Resource Management (SHRM) surveyed it was discovered that 77 percent of respondents use social networking for recruitment. That figure is up from 56 percent in 2011.
So, it is safe to say that there are some lawsuits just waiting to happen out there.
You must ask yourself are you being consistent in the use of social media, both to use as a recruiting tool and as an investigative tool. Are you inadvertently excluding certain members of the population by solely using social media?
However, when it comes to screening job applicants, it appears that fewer employers are using social media than in the past. In the 2013 SHRM survey, 22 percent of respondents said they use social media websites like Facebook or Instagram to research job candidates, a decline from 34 percent in 2008.
Does that mean employers are scared of using the tool for investigating applicants? Let’s say an employer decides not to use social media to investigate an individual. And let’s say that should the employer had done social media investigation, there would have been information indicating the individual would have a propensity to harm co-workers or a member of the public. Because the employer decided not to do the investigation, they would be held liable for negligent hiring if that individual harmed someone while in their employ. I know you are probably thinking we are damned if we do and we are damned if we don’t. That is not true. You are damned if you don’t do it properly. It would be the same if an employer decided not to perform a criminal conviction search on the individual and the individual harmed someone or committed a crime, as they had done in the past.
In a recent article in SHRM Magazine Jonathan A. Segal lists 7 Ways to Maximize Benefit and Minimize Risk. Employers are well-advised to follow this guidance when using social media in the hiring process:
- Never ask for passwords. In several states, employers cannot ask an applicant (or employee) for his or her social media password by law. In all 50 states, asking for an applicant’s (or employee’s) password creates a real risk of violating the federal Stored Communications Act. For this reason, employers should look only at content that is public.
- Have HR do it. It is best if someone in HR, rather than a line manager, checks candidates’ social media profiles. The HR professional is more likely to know what he or she can and cannot consider.
- Look later in the process. Check social media profiles after an applicant has been interviewed, when his or her membership in protected groups is likely already known.
- Be consistent. Don’t look at only one applicant’s social media profiles.
- Document decisions. Print out the page containing social media content on which you base any hiring decision and record any reason for rejection, such as bad judgment. This protects you if damaging content has been deleted by the time a decision is challenged.
- Consider the source. Focus on the candidate’s own posts or tweets, not on what others have said about him or her. You may want to give the candidate a chance to respond to findings of worrisome social media content. There are impostor social media accounts out there.
- Be aware that other laws may apply. For example, if you use a third party to do social media screening, you are probably subject to the federal Fair Credit Reporting Act (and similar state laws). Also, some state laws prohibit adverse action based on off-duty conduct, except under narrow circumstances.
Employers use background checks to get a fuller picture of the candidate than an interview reveals. Social media screening is one way to enhance the background check to determine whether a candidate should be hired.