While you may be tempted to check a job candidate’s social media presence before hiring, doing so might not be worth the risk.
Depending on what you see and how you use it when deciding which candidate to hire, you could be subject to a lawsuit from someone who didn’t get the job.
Aliah Wright, a manager with the Society For Human Resource Management (SHRM) and author of “A Necessary Evil: Managing Employee Activity on Facebook, Twitter, LinkedIn and the Hundreds of Other Social Media Sites” (Society for Human Resource Management 2013), said a lot of HR professionals are leery of learning things about candidates via social media, because of the potential legal risks.
“They have to tread carefully when they are using social profiles for background checks,” Wright told Business News Daily.
The legal risks come from the information you learn that the candidate may later claim was the reason he or she wasn’t hired. There are a variety of “protected characteristics,” such as age, race, religion, medical history and nationality that employers can’t consider when deciding whether to hire someone. Employers that do base hiring decisions on that type of information can be sued. [
Research from the SHRM revealed that 76 percent of employers that don’t use social media when conducting background checks said they avoid this practice mostly because of the legal concerns.
Jonathan Segal, a partner at Duane Morris LLP in the employment, labor, benefits and immigration practice group, said that while there are risks in checking out social media when screening candidates, there are also risks in not looking at it.
“Sometimes, lawyers think [businesses] are taking a risk [by looking at social media], but they could be taking a bigger risk [by not looking], because then they hire the person that is dangerous or unproductive,” Segal said.
Segal said in his opinion it’s reasonable to include social media screening as part of your background-check process. The questions are, however, when and how to do so.
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What you can find on social media
Whether it’s seeing inappropriate pictures or reading disparaging comments, you can find a number of things on social media than can help you avoid making a potentially bad hire.
“There are some things that [you] may see that people do on social media and [that may make you] say, ‘Oh, this person may not be a good fit culturally because of this behavior,'” Wright said. “Or the behavior that they shared demonstrates that they aren’t someone who uses good judgment.”
However, finding one picture of someone drinking on a Saturday night doesn’t mean the person won’t be a good employee, Wright said. More and more HR professionals are taking that into account when checking out potential new hires on social media, she said.
“People are taking those things into consideration, because we have all been there,” Wright said. “You have a life outside of work, and sometimes you demonstrate that in your social postings.”
On the other side, sometimes you find something that makes you think a candidate will be a good fit for the job, according to Segal.
“You could see someone who is very involved in community service,” he said. “You could see an individual writing thoughtful comments.”
Social media checks can also tell more about the skills a candidate possesses. More and more job candidates are using blog postings on LinkedIn or videos on YouTube, for example, to show off their portfolio of work.
“A lot of recruiters are using social media for skills assessment, and that can be a good thing the background check can yield,” Wright said.
When it comes to what type of social networks businesses can check, Wright said all the sites are fair game. She said there used to be a common thought that you should look only at a person’s professional social media profiles, like LinkedIn. However, in recent years, there has been a blurring of professional and personal social networking activities.
“Think of the people you know who use Facebook for professional reasons and personal reasons,” Wright said. “It is all sort of blended. Whether it is personal or professional, it doesn’t matter, because it is out there for everyone to see and it is out there for everyone to make judgments about.”
How to conduct social media background checks
For employers that are going to include social media checks as part of the background-check process, Segal offers several pieces of advice:
1. Wait until the end: One way to help minimize the risk of a potential lawsuit is to not conduct social media background checks until you are close to making a final hiring decision. Segal said you should never look at a candidate’s social media pages when screening résumés.
“Why take a risk when you don’t need to?” Segal said. “If someone doesn’t have the five years’ experience required or if someone doesn’t have the degree you need, why would you even look?”
If you wait until after interviews are conducted, however, job candidates would have a tough time claiming that the reason they weren’t hired was that you saw their age or race on their Facebook pages.
“That person has made it to then end, and you know they are older, [or] they made it to then end, and you know they are a person with a disability,” Segal said.
2. Only HR staff should look: You don’t want the person who would be directly in charge of the job candidate searching social media pages. Segal said this should be left up to HR professionals or a background-check service, since they are much better trained to know what to look for on social media.
“I just think supervisors aren’t as sensitive to what they can’t consider,” Segal said.
3. Be consistent: You want to make sure you are checking everyone, or no one, when hiring for a specific job. That doesn’t mean you need to conduct social media checks for every position you are hiring for, but there should be guidelines for when it is done, Segal said. For example, you might have a policy that says you look at social media when hiring for all manager-level positions.
Segal said you don’t want to get into a situation in which you are down to two final candidates and then decide to check out one of their Facebook pages because something about one of them made you feel uncomfortable.
“Maybe the reason you checked is because of unconscious bias, and that’s a real problem,” Segal said.
He said the law is clear that you don’t have to have a rule that everyone is subject to a background check. But you can’t do background checks in a way that is discriminatory, whether consciously or unconsciously.
4. Look only at what’s public: It is important to look only at social media pages that are public for anyone to see. Under no circumstances should you ever ask for job candidates’ social media passwords.
Segal said asking for a password is not only a criminal offense in nearly two dozen states, but it also sends a signal that maybe you aren’t an employer someone wants to work for.
“If your potential employer asks you for your social media password, that’s like asking you for a key to your house,” he said. “Find a better employer to work for.”
5. Look for outliers: When you are searching a candidate’s social media pages, look only for things that stick out as being really bad or really good.
“You are just looking for outliers,” Segal said. “Very negative might be posting the pictures of partying all night, and the very positive might be helping the disabled or veterans.”
6. Give guidelines to your background-screening firm: Businesses that use an outside firm to conduct background checks should know not only if the firm searchers social media pages, but also what it looks for.
“If they are doing it, you want to set clear guidance for them,” Segal said.
“You should tell them the things you want to know and those you don’t, such as any medical or personal information.”
While federal law states that you must alert job candidates if you are having a background-check company conduct screenings on them, it is unclear if you need to tell them specifically that their social media pages will be looked at, Segal said.
Despite that, he said he would advise employers to be up front and say that when conducting background checks, they will look at, among other things, criminal, credit, employment and educational history, as well as social media that’s available in the public forum.
While giving candidates fair warning that their social media may be looked at could give them the impetus to remove any potentially damaging posts, Segal said that’s not such a bad thing.
“If you [list] social media, then anything they have that’s problematic they are going to remove, so it is nothing more than a stupidity test,” Segal said. “But if it weeds out someone who doesn’t care enough to clear it up, then I think it’s served its purpose.”
(Business News Daily, 2018)