Social Media

It’s goes by different names; cyber-vetting, social search, social footprint and “googling” (if that has even become a word) but it still is the same process, pre-employment screening on social media.  A large human resources organization conducted a poll and found that 76% of employers review their applicants on social media as part of their hiring practice.  And why not tap into the 45 billion pages of data on the web to get a better understanding of this person you will be giving access to company assets, your brand and your customers?  Why not see if they are a part of the 1 billion Facebook users, 175 million LinkedIn users, 140 million Twitter users or 1 billion YouTube users with 4 billion hours of video available at the end of your mouse?

Tempting, but is it legal?  Is the information on social networks deemed personal and therefore protected under the Fair Credit Reporting Act when it comes to hiring?  There are numerous questions surrounding this practice and it has yet to make its way into the high courts.  There have been a few states that have enacted laws prohibiting employers from requesting social media log-in information, friending or following employee and job applicants.  The first was Maryland in 2012 with their social media privacy law.  Since then Arkansas, California, Illinois, Michigan, Nevada, New Mexico, Oregon, Utah and Washington have followed with their own statutes.  Similar bills have been passed in Louisiana and Texas but failed to make it out of the Senate.  Currently Delaware, Hawaii, Kansas, Maine, Nebraska, New Hampshire and New Jersey all having new laws pending.  There will be more states enacting social media privacy laws in the near future based on the sheer number of complaints and errors that occur when conducting these types of searches as pre-employment screening.

So what’s the problem you ask?   First, do you believe everything on the internet?  False or inaccurate information is rampant on the internet.  Ever see a profile picture that was incorrect or from a person when they were way younger than they are now?  Online personalities can be deceiving; they can be the furthest thing from the real personality.  Second, how do you know that the information you are viewing on a perspective applicant is even that same applicant?  The identity of the applicant would be hard to obtain from someone that you may have not met yet.  What happens when the David Smith you are reviewing online is not the same David Smith you have an interview with tomorrow.  Lastly, and the most damaging error you can make is to research an applicant online and make the decision not to move forward with the interview based off what you saw on social media.  An example would be if you found out that the applicant was in their late 50’s and blogged about the retirement home they just purchased and that he/she was planning on retiring and moving the following year.  Your decision not to invest any more time in a “short-timer” that would possibly leave in a year violates Federal and State law.  These laws bar any hiring decisions that are based on certain protected classes, including race, religion, age, gender, disability, and military status.  You as an employer would not have known about the planned retirement during the application process.  But the “short-timer” applicant follows up with the job and finds out that someone from your company viewed their profile, read their blog, etc. and now realizes why they did not get a call back.  What happens if during your social search you see that the applicant is handicapped, a devout Muslim or a person of transgender?  Your personal views and strong urge to “protect” your company would likely bring an EEOC investigation and large fine to your company if that decision was made during your social snooping.

The majority of information found on social media can come out in thorough personal interview.  The applicant is there to talk about themselves and you are there to see if their skills and knowledge are a right match for your open position.  Talk to them don’t just review (again) their resume or application.  A social media search should never be done in place of professional FCRA compliant background screening from a professional CRA (Credit Reporting Agency).  If social media searches are conducted as part of your due diligence, ensure you speak to your attorney or corporate council about the practice and reduce your legal liability.  Stay safe, stay compliant!