The question of social media as it relates to issues of employee and corporate privacy and productivity is a big topic for most companies today. Some organizations have already stepped up and developed social media policies for their employees while others are just realizing that they need to do so. One of the most critical areas of policy relates to the use of social media in hiring and background screening, and this is an area where companies should not wait to make policy decisions — the potential ramifications are too critical.
When job applicants tell the world about themselves on social media sites, the temptation for hiring professionals to use that information to help make good hiring decisions is huge. After all, unless the applicant has restricted access to their posts and tweets, they are basically disseminating public information. In fact, according to a recent study by CareerBuilder, 55 percent of company respondents said they had checked applicants’ social networking sites in 2009. This was up from 22 percent in 2008. Thirty-five percent of this group stated adverse hiring decisions were made based on information they found on social networking sites. These recruiters may well be putting their companies in jeopardy.
First, there is some question whether the search results on social media sites can amount to “consumer reports”, which would make them regulated by the federal Fair Credit Reporting Act (FCRA). The FCRA outlines very specific requirements for employers in their ordering and use of the employment screening reports of their applicants and employees conducted by “consumer reporting agencies.” E.g., the employer is required to receive permission from applicants before performing a background check, and must follow the FCRA’s pre-adverse and adverse action notice requirements if they are going to make an adverse decision based in whole or in part on the information contained within the background report. If and how the FCRA may be applied to social media is not yet clear, however a potential mine field exists. Could search results from these sources supplied by third parties be considered “consumer reports” even though the information is public?
Further, one of the biggest concerns with the use of social media in background checking is the potential it creates for discriminatory hiring claims. Many companies have stringent guidelines for their hiring professionals to not use any data supplied by an applicant if that knowledge might lead to discrimination, e.g., a decision based on the applicant’s sex, age, race, religion, etc. Recruiters will delete pictures and videos from resumes so as to eliminate any possible question of discriminatory practice. Visiting a person’s social media sites is likely to provide large amounts of information contrary to these careful non-discrimination practices. Certainly pictures may provide data on age, sex, race, potential disabilities, etc. Posts may provide information regarding religion, political affiliation, and legal social activities that might still bias an employer. In the event of a discrimination claim, the employer whose recruiters have seen this information will be on the defensive to establish that they were not influenced by it.
Not using social media similarly is a complex issue. 80 percent of companies use or are planning to use social networking sites to find and attract candidates this year, according to a survey by Jobvite. Seventy-two percent plan to invest more in recruiting through social networks. In fact, 24 percent of candidates disclose their social networking presence when applying for a job. Companies which desire to take advantage of the exposure to potential candidates that social networking sites offer therefore are challenged with developing screening and hiring policies that allow them to do so while avoiding unfair or discriminatory hiring.
When developing a social media screening policy, the company may want to:
• Provide notice to the applicant and ask permission to check the social media sites
• If accessing the sites without notice, then provide the applicant an opportunity to respond to what the company finds on the sites
• Not access the applicants’ social media sites at all – even if the company uses social media sites for recruiting
• Accessing the applicants’ social media sites without notice and without providing the applicant an opportunity to respond to what the company discovers may well be the most dangerous course of action.
As social media becomes more and more ubiquitous, legal standards regarding use of these sources for hiring purposes will become clearer. At present, to mitigate the risk of making discriminatory hiring decisions and to prevent against any issues with potential future regulations using social media, it’s best to err on the side of caution.
The HireRight Blog is provided for informational purposes only and should not be construed as legal advice. Any statutes or laws cited in this article should be read in their entirety. If you or your customers have questions concerning compliance and obligations under United States or International laws or regulations, we suggest that you address these directly with your legal department or outside counsel.