(Please note that none of this constitutes legal advice. This article is meant to delineate some best practices you can observe, but it is always worthwhile to seek legal counsel to ascertain the particulars of your local laws.)
Screening Potential Employees
If you’re reading this, chances are that you either already use social media for business or are considering doing so. I often write about social media’s use in the promotional arena, but today we are going to take a look at another important facet of using social media in business: screening new employees.
Now it might seem to be a no-brainer that you should Google prospective employees. The information is public and easily accessible, a treasure trove for those wishing to find the right fit. Unfortunately, social media has added layers of complexity to the issue. There are legal complexities to the recruiting process that make this sort of screening problematic for hiring managers.
In the modern workplace there are a lot of rules about what sort of info an employer may ask for. Gender, race, religion, and other aspects of a potential employee’s life are forbidden. This makes things interesting when HR starts looking at a person’s social media postings, since those topics often are front and center. Once seen, these details cannot be unseen, which creates a discrimination issue.
Not a Rhetorical Question
AmericanBar.org has extensive information on this subject, and cites two cases in particular that demonstrate this is not just an idle thought experiment:
In Gaskell v. University of Kentucky, No. CIV.A. 0909-244-KSF (E.D. Ky. Nov. 23, 2010), the plaintiff successfully argued that the university denied him employment based on his religious affiliation, which it discovered online. In Gaskell, the university was searching for a director to oversee its new observatory. A member of the search committee researched the plaintiff online and discovered he had written an article on astronomy and the Bible. The committee member believed the article was evidence of plaintiff’s Christian faith and belief in creationism. In an e-mail, the search committee member wrote: ‘the reason we will not offer [plaintiff] the job is because of his religious beliefs […]’ Plaintiff was denied the job and sued for religious discrimination. The email was used by the court to deny the university’s motion for summary judgment, and the parties eventually settled.
In Neiman v. Grange Mutual Casualty Co., No. 11-3404 (C.D. Ill. April 26, 2012), the plaintiff alleged he was not hired because of his age. The employer argued it could not have considered the plaintiff’s age because it did not know it when it made its decision. The plaintiff, however, countered that the employer must have known his age because he posted his college graduation year on his LinkedIn profile. This was enough to get the plaintiff past the employer’s motion to dismiss.
So how should a business proceed? Researching prospects on social can be a real minefield, but it can also provide useful info about possible new team members. It can be done — it just requires some planning.
Another Set of Eyes
The first thing to do is get a third party to look at your prospect’s social accounts for you. Having a neutral company do it means that they can screen info about protected topics so that you never see the things you are not legally allowed to consider. They can provide you with information about aggressive or violent posts, illegal activity, discriminatory statements, and all the other indicators that are fair game. Of course this does trigger the Fair Credit Reporting Act, which has its own strictures about disclosure.
Documentation Is Always Good
If you find something online that raises questions, take a screen shot. It is always better to have too much documentation rather than too little. Make sure that the social screening takes place at the same point in the hiring process for all candidates, and record the actions taken as well as the dates upon which they were taken. If your process is called into question it’s a good idea to have as much of a paper trail (virtual or hardcopy) as possible. If a discrimination suit is leveled against you, you will want to have as much dated documentation at hand as possible when disputing it.
If you’re going to use social platforms in this fashion, make sure that you have a policy in place beforehand. Detail which platforms will be looked at, what kind of public searches will be made, and delineate the organization that separates the person doing the search from the decision maker. Once you’ve formalized these policies, stick to them!
Don’t Ask for Passwords
The temptation to ask potential employees for social media passwords is mighty, but the drawbacks are copious. For one thing this is flat-out illegal in 12 states (Arkansas, California Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington). In addition, doing so forces the applicant to violate the terms of service for the social platform in question, as it is common to find language disallowing the sharing of sign-in data.
One other issue is that asking for passwords will probably turn away high-potential hires. The most digitally literate candidates are often the ones who will pass on a position if asked to fork over their login info, seeing it as an invasion of privacy. With the digital aspect of business being so important these days, these are the prospects you don’t want to lose.
While all businesses should have a legal advisor, it’s advisable to keep up to date on these issues. Websites like AmericanBar.org and the job site Monster are both excellent resources that have specific sections covering this topic. Google search is also a great way to find info about the current state of affairs. Just like anything else involving the Internet, change comes thick and fast. What’s true today might change, and it is vital to keep up with those changes.
While I know this article has had little to do with content marketing, I wanted to point out some of the less-than-obvious pitfalls one can face when using social tools in a professional environment. I hope you’ve found it useful!
Image by Ricky Martin
George “Loki” Williams is the community and brand manager for award wining game company Savage Mojo, Ltd. and the owner of SocialGumbo, LLC, an online consultancy specializing in Web content and online communications. Loki has produced content for clients including the Open Society Institute, National Association of Broadcasters, Kobold Press, and Kaiser Permanente. His work has been seen or written about in The New York Times, The BBC, Air America, The Gambit Weekly, and NOLA.com, among others.