This article is part of our ongoing Weekly HR Scenario series by our National HR Client Service Manager, Kim Schaff, SHRM-SCP, PHR. In each of these articles, Kim will walk you through a real-life HR scenario and break down how this situation should be handled and all the ins and outs of the rules and regulations that impact the scenario.
For this week’s scenario, let’s look at a question that has been a rapidly growing concern for employers in recent years, and will continue to be moving forward: social media as a part of recruiting and hiring.
More and more employers today use social media as a recruiting tool, or even to conduct a type of informal “background check” for potential new hires. With this being such a new issue to consider, however, many employers are unsure of what issues may arise from doing this, what is allowed, and what rules and regulations they need to consider.
We strongly recommend against reviewing a candidate’s social media accounts during the interview process. By doing so, you could be exposed to information about the protected classes to which your candidate belongs. For instance, if you went to their Facebook page, you might discover their race, age, or religion.
If your ultimate hiring decision was challenged, you would need to prove that those characteristics were not a factor in your decision.
If you decide to use social media in recruitment and/or screening, remember…
Issue # 1) Timing is everything!
Do not look at social media profiles to screen applicants.
Using social media to screen applicants is using it too early in the process. Generally, it’s unnecessary and risky. It’s unnecessary because you should be focusing on the position’s objective criteria at this point. It’s risky because an unqualified applicant may claim that she was rejected because you saw she was an older Asian woman, for example.
Review social media only at the end or near the end of the hiring process—specifically after a candidate has been interviewed, when his or her membership in a protected group is more likely already known. Some employers include this step as part of their background check. The risk is much lower because, after interviewing the applicant, you will already know that the applicant is, as in the prior example, an older Asian woman.
Additionally, fewer applicants will have their social media profiles reviewed so it has fewer risks, but there still is some risk. An individual may post information you otherwise would not learn about in the interview, such as his or her sexual orientation or that he or she is on medication for depression. The risk must be balanced against the value of what you may learn.
Issue #2) Who should review social media?
Someone on your HR or Management team, (never the hiring manager), should review candidates’ social media account. Choose an individual who is best equipped to focus on what can and cannot be considered.
Issue #3) Only review public information.
Never ask an applicant for his or her social media password or username. Many states have legislation that prohibits an employer from requesting a username or password for a personal social media account.
Issue #4) Follow a process.
You don’t need to look at social media profiles for every position in the company, but it’s also dangerous to do so only when you feel like something may be off. Selective social media reviews can be seen as based on discriminatory factors. Indeed, the gut feeling may be based on implicit bias if the person is different from you—whoever you may be.
So decide before you begin recruiting for a position whether or not social media screening will be part of the process and document it. Print out any social media posts that you intend to consider. This preserves the argument, by negative implication what you did not consider, namely, an applicant’s membership in a protected group.
Issue #5) Be aware that other laws may apply.
For example, if you use a third party to do social media screening, you are probably subject to the federal Fair Credit Reporting Act (and similar state laws). Also, some state laws prohibit adverse action based on off-duty conduct, except under narrow circumstances.
The Society of Human Resource Management reports that 84% of organizations recruit via social media, and at least 20% use social networking websites or online search engines to screen job candidates. If you choose to use social media as part of your applicant screening process, do it consistently preferably after the interview or job offer, and follow a documented process.
Ensure HR or a manager who is not the hiring manager is conducting the review. Do not consider protected class information or other potentially discriminatory information, and only review information available publicly.
Keep in mind: candidates research people who interview them all the time. They are evaluating you, just the way you may be evaluating them!
State law applies and specific state laws may not be addressed in this response. Always consult with an employment law attorney regarding employment-related decisions.