Recently, a survey found that half of all background checks by employers include a search on social media platforms.
In some cases, this operation requires candidates to disclose usernames, passwords, and other information to have access to Facebook and Twitter accounts, e-mail, blogs, and other online content for review by prospective employers.
This has triggered a flurry of state and federal regulations to govern employer overreach, including:
- Calling for federal investigations
- Introducing Congressional bills prohibiting the use of online posts as part of the hiring decision
- State legislators introducing and passing legislation prohibiting employers from requiring candidates to disclose credentials to access content posted on social media sites
What should recruiters, human resources departments and hiring managers do?
Hiring is more than bringing on a person with specific skills; it is finding a person that is a ‘good fit’ in the company culture. In a position requiring high-level responsibilities—jobs such as such as a supervisor, manager, or other executive—the ‘soft skills’ of the candidate may be as valuable as hard skills and training.
The best leaders earn the trust and confidence of those around them; they encourage them to achieve more.
Judgment, discretion, and commitment to goals are critical to their personal success, as well as the success of the organization.
An online presence with controversial social media postings may indicate poor judgment, a lack of farsightedness, and other red flags about the candidate’s decision-making ability. Often, they will prove the candidate unfit for the job.
It is reasonable to conclude that social media posts and content is relevant in assessing the quality of a candidate.
Risks in acquiring data in protected areas.
There are several protected areas in the information online—information about age, race, creed, marital status and political affiliation, among others.
This is crucial for employers to consider, since protected activity, including workers’ compensation claims or specific activities, are listed under the National Labor Relations Act.
Section 7 of the NLRA says employees have the right to engage in online communications about wages and working conditions, provided they are ‘protected concerted activities.’ Potential future employers are prohibited by law from discriminating against candidates due to protected activity with a current employer.
Considerations for activities considered protected by the NLRA:
- Is the employee complaint about working conditions, suggesting collective action should be taken in response?
- Did the employee talk to any coworkers about the complaint?
- Are coworkers online “friends” with the employee with the complaint?
- If coworkers responded to the online post, what was the response?
- Were similar complaints made by others, or did they agree with the complaint?
- Did coworkers have further conversations about the workplace complaint?
If an online post by an employee meets these requirements, and pertains to wages, benefits, working conditions, and treatment by management, it may be protected concerted activity.
Of course, few employers need to use this level of scrutiny to a candidate’s social media posts to establish protected activity.
There are 10 recommended guidelines for recruiters and hiring managers:
- Searches on the candidate on the Internet should only use public information:
Reviews of social media content should only be content in the public domain. Companies should not require candidates to give private usernames or passwords, nor should they require candidates to “friend” the company, log onto Facebook site and observe them as they surf through the site during a part of an interview.
Many candidates come from referrals from current employees. Making an effort to examine a candidate’s non-public material by means of the referring employee’s “friend” status is also prohibited. Privacy is always a problem with online content, and a candidate’s privacy must be respected.
- Separate researcher from decision-maker.
An exemplary practice is for a separate employee to review publicly available content, removing protected comments and activities prior to providing it to a decision-maker.
- Searches are consistent and uniform.
If a business chooses to use social media as part of a background check, searches must be consistent for all candidates. A good idea is to have a checklist of the websites used in a search.
- Notification of intent.
Much of the material on public websites can be fraudulent and not posted by the candidate. Prior notification of search practices to verify the identity of the candidate and the accuracy of the social media profiles.
- Searches must be performed after an initial interview.
Only perform a social media search after the first interview and only for qualified candidates.
- Follow all rules and conditions of each site used in the search.
Companies always comply with all terms and conditions.
- Access to social media sites should be freely given, without coercion.
A company should never make candidates provide passwords or credentials to private, social sites. Always inform the candidate that only public material will be used in a search.
- Only use public content and non-protected information in making hiring decision
Only public content from the online search scrubbed of protected information in regards to protected categories and activities. This should be the only material provided to the decision-maker by a separate researcher.
- Document everything used in a hiring decision.
This is one of the most crucial steps in the process. Any search, as well as hiring decision, should be fully documented—a record of any legitimate, nondiscriminatory explanations for the hiring decision.
- Train all hiring staff in social media research best practices.
Every employee involved in the hiring process should be taught current best practices in background checks involving social media. This training includes any recruiters, human resource professionals, hiring managers, and executives responsible for recruiting and hiring process.
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