Social media can be a powerful and cost-effective tool for recruiting top employees. Unfortunately, it also can be a powerful and cost-effective tool in the hands of an attorney suing your organization for discrimination. The risk and potential exposure to litigation from an inadequate social media strategy increases as one moves from recruiting to screening to hiring.
The same precautions applicable to traditional job postings should be taken when advertising positions through social media. Many social media sites are narrowly focused, potentially yielding the same discrimination-in-jobadvertising claims that may result from advertising in limited circulation periodicals catering to particular ethnic, racial or religious groups. Avoid this trap by ensuring that your social media ad is easily found by anyone searching for available openings at your company. Be wary of targeted ads offered by some sites. While it may seem like a good idea to target, for example, people who have “liked” your company’s page, you have limited control over the demographics of those who actually see the posting. An EEOC investigator or lawyer may later claim that your targeted ad was designed to exclude certain groups.
Is it OK to review social networking profiles to whittle down the applicant pool? If it were that easy, the Society for Human Resource Management would not have found in a ____ survey that although __% of companies use social media to advertise positions, only __% of them use it to screen applicants. What these companies recognize is using social media to screen applicants is one of the easiest ways to get sued. By reading someone’s posts, looking at his/ her pictures, and reviewing graduation dates, it is easy to ascertain someone’s age, race, nationality, sexual orientation or disability status — all factors employers cannot consider in hiring decisions. In a discrimination lawsuit, you would be pressed to explain why you looked at this information shortly before you eliminated an applicant from consideration.
Screening applicants via social media may also directly run afoul of the law. Both the federal Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act require specified notices be provided to consumers before a consumer report is obtained, and they must be informed if negative information was a basis for an employment decision. There also is a host of laws governing the use of credit checks and criminal records for hiring that may be implicated. The point is the risk of unwittingly violating the law when using social media to screen applicants is high. For that reason, employers should consider telling all applicants that they will be subject to a comprehensive background check, including social media, only after they are given an offer of employment.
An increasing reality — particularly in California — is performing background checks on potential employees can result in lawsuits. At the same time, failing to perform a background check will almost certainly lead to lawsuits if an issue later arises.
Decide in advance what information you need from a social media check. Is social media expertise a requirement of the job? Is the position high profile such that personal posts on social media will reflect on the company? Advance decision- making on these questions will ensure that your social media checks are consistent, objective and job-related. Finally, be sure to obtain a signed authorization from the applicant that specifically mentions a comprehensive social media check. Keep a record of all the searches you run, and if there is any negative information found that might disqualify the applicant, provide that information to the candidate and give them an opportunity to rebut it.