Social Media Screening: Navigating the Minefield


By Rob Pickell, HireRight May 5, 2011
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The value of the Internet as an information source is obvious, but companies need to balance the benefits carefully with the potential risks if they choose to use social media for recruiting or screening candidates.

According to a recent research report by the Society for Human Resource Management, 76 percent of companies are using or plan to use social media sites for recruiting in 2011, and more than half say that social networking sites are an efficient way to recruit candidates.

It’s important to note that many companies, when they state they are using social media for hiring, actually mean that they are using it for sourcing. Employing online resources to find candidates—especially those who post for that very purpose—is a generally accepted and growing practice. While the issue of exposing information about protected groups at the sourcing stage exists, companies seem to be managing this concern effectively to date. Networking has long been understood to be one of the best ways to find good candidates and for job seekers to find jobs, and social networking, in one sense, is simply using technology to assist with a core recruiting process.

Problems grow when social media use expands from candidate sourcing to candidate screening or eliminating a candidate from consideration because of data found through social network content. While there is little direct legal precedent around this issue, the challenges are understood easily by employment attorneys and astute human resource professionals.

“The difference may be between whether a company receives information in the course of the recruiting process or the employer actually goes out to farm the data as part of the screening process,” said Rod Fliegel, an employment attorney with Littler Mendelson in San Francisco. “There hasn’t yet been a significant legal case to test the issues, and of course, few companies want to be the focus of such an action.”

Legal Concerns

The potentially conflicting legal issues arise in three main areas:

Discrimination: Most employers have stringent employment policies that prevent the hiring professional from coming into contact with potentially discriminatory information. Photos and videos attached to resumes often are shunned for this reason. Application forms are crafted carefully to avoid potential discriminatory practices. Visiting a person’s social media profile, however, might reveal large amounts of information contrary to these nondiscriminatory practices. A photo might indicate race, age and possibly ethnicity. Applicants disclose information about marital status, religion, affiliations, politics, disabilities and even social interests that by la​w must be ignored in a hiring decision.

FCRA Regulations: The second issue has to do with the application of the Fair Credit Reporting Act (FCRA) as it relates to social media. The FCRA identifies background screening companies as “consumer reporting agencies” (CRA) and outlines specific requirements of employers and such agencies in the screening process. Employers must receive permission from applicants before performing pre-employment checks through a background screening company. There are rules, too, that must be followed if any information gathered by a screening company adversely affects the hiring of the individual, even if there are additional reasons for the employer’s decision. As part of these rules, these agencies must meet certain accuracy and consumer dispute obligations that are challenging to fulfill given the nature of social media site content being published and controlled by consumers—content that can change at any time.

Negligent hiring: It’s important for employers to consider the potential risk for a negligent hiring or negligent retention lawsuit related to social networking profile information. It is possible that, if there were a workplace violence incident in which derogatory information was available on the perpetrator’s public social networking profile that could have foreshadowed the bad behavior, the employer might be held liable for negligence in not using this information when the hiring decision was made. The key factors are not unlike those of cases that have resulted in significant jury awards.

Mitigating Risks

Employers have several potential approaches to mitigating risk of legal action when using social media in the hiring process.

Here are a few:

Don’t access social media sites.

Employ social media for sourcing of candidates but restrict its use in the screening of candidates.

Use social media in all areas of hiring while employing practices to reduce litigation risk.

It’s likely that legislation and case law will clarify the use of social media in screening. Meanwhile, employers can establish policies that protect against discriminatory practices. In the event of a discrimination claim, the company whose recruiters have accessed social media information might have difficulty proving that they were not influenced by it.

Rob Pickell is senior vice president, customer solutions, at HireRight, aleading provider of on-demand employment screening solutions.

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