Legal Issues, Recruiting and Staffing

3 Tips to Help Guide Your Social Media Check on a Potential New Hire

Backgroundchecks

By Eric B. Meyer

According to this recent SHRM survey, only 18 percent of companies have used social media to screen job candidates. Most cite the legal risks of screening candidates as the reason for not implementing a social-media background check.

While a social media background check may not be useful in certain instances, I can imagine many situations in which a company would benefit from checking up on candidates online before filling a job opening. Heck, consider that 89 percent of employers plan to use social media for recruiting this year.

Have I piqued your interest? Here are some suggestions about how your company can safely run a social-media background check.

When are you going to search?

Sure, you could check up on every candidate online. But, save yourself some time. Do the interview first and check the ones whom you ultimately consider for the open position.

Who is going to conduct the search?

I’ll tell you who isn’t going to search: whomever has final say over who gets the job. Why not? Because a social media search may reveal a lot of information — protected-class information about a job candidate — upon which a company may not make an employment decision. And you don’t want to create the impression that the decision-maker is relying upon protected-class information in making an employment decision.

So, I suggest having someone from HR conduct a social media search on your job finalists; although another non-decision-maker within the company will do the trick. Or consider having a third-party run the search. Just remember, as with any other third-party background check, you must abide by the Fair Credit Reporting Act if an outside vendor checks potential hires on social media. That means you’ll need to comply with three rules:

  • You’ll need a clear and conspicuous written disclaimer that a consumer report may be obtained for employment purposes;
  • You must first obtain written authorization from the job candidate prior to checking up on them online; and
  • You must provide the applicant with a report if the results of the background check are used to deny employment.

Even if you decide to run the search in-house, consider providing advance notice of the search to job candidates and get them to authorize the search in writing. Note: this does NOT mean requiring candidates to turn over usernames and passwords to their social media accounts. That is bad joojoo. Friending job applicants to review information to which access is otherwise restricted based on user-determined privacy settings is nearly as stupid.

How and what are you going to search?

Make a list of the sites you wish to search. And stick with that list. This does not need to be an exotic list. You can keep it simple and go with the basics: Facebook, Twitter, LinkedIn. A Google search also makes sense.

To avoid ad hoc searches and inconsistent checks, also a develop a specific list of the “red flags” that will cost the candidate a shot at the job. I discussed some of them here. As you search, print out or .pdf any “hits” that contain red flags. These red flags — and only these red flags — should then be provided to the ultimate decision-maker. Be sure to redact any extraneous information, especially protected-class information. We wouldn’t want the decision-maker seeing that or, worse yet, relying upon it when making an employment decision.

Once you have determined the search protocol, reduce it to writing (i.e., create a policy) and train those involved on how to implement it. As with any policy, it’s only as good as the paper it is written on unless employees know how it works.

See, it’s not that hard.

You don’t have to conduct a social-media background check. Remember, only 18 percent of employers are currently doing it.

However, if you decide to do one, consider following the steps laid out above. And then get an employment lawyer to review and bless your social media-search strategy.

Attorney Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event. 

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP . He dedicates his practice to litigating and assisting employers on labor and employment issues affecting the workplace, including collective bargaining, discrimination, employee handbook policies, enforcement of restrictive covenants, and trade secret protection. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission. Contact him at emeyer@dilworthlaw.com .
  • http://www.hraskme.com Martin Birt

    BC privacy commissioner has also set out guidelines. http://www.oipc.bc.ca/pdfs/private/Guidelines-SocialMediaBackgroundChecks.pdf

  • http://www.workplaceviolence911.com Wbnixon

    Eric Meyers article is very well written in a straightforward manner that is easy to follow. He truly makes doing social media checks on applicants sound easy and simple. Thanks for breaking it down this way.

    Barry

  • Rob

    Good post, worth a read

  • Mel Kleiman

    Must read article. Thanks for the guidence.

  • Anonymous

    A very informative article. The author is correct in pointing out that a social media search may reveal ‘protected-class information’ about a job candidate and that employers must abide by the Fair Credit Reporting Act (FCRA) if an outside screening vendor checks potential hires for them on social media. For more information and helpful tips about social media background checks, you can download a white paper from Employment Screening Resources (ESR) written by safe hiring expert Attorney Les Rosen called “Managing the Risks of Using the Internet for Employment Screening Background Checks” at http://www.esrcheck.com/Download/.
    Thanks,
    Tom