Use social media smartly when hiring

There are so many legal pitfalls to avoid when using social media in the job candidate sourcing and screening processes, some HR professionals might wonder whether it’s worth all the trouble.

The answer is: Yes -- if done carefully. Social media can expand the universe of applicants significantly and can shed valuable light on job candidates -- when done with discipline, experts say.

Laws and regulations tend to lag behind changes in the worlds of social media and HR, but sound social media policies can help keep hiring and screening practices viable. In addition, they can help organizations remain competitive for top talent.

“The benefits of using social media in recruiting are clear,” said David S. Baffa, a partner with Seyfarth Shaw in Chicago. While it’s true that there exists the potential for costly lawsuits against employers for misuse of social media, “most of the stuff you hear about potential risks -- I haven’t seen it play out in litigation.” 

Avoiding discrimination charges

Perhaps the biggest concern with using social media in the hiring process is discrimination. Social media provide employers with information that they might not obtain otherwise -- or might not obtain until they conduct a face-to-face interview.

For example, employers generally avoid photos and videos attached to resumes and application forms. But social media sites present employers with information such as race, ethnicity and approximate age. They might include information about religion, marital status, disabilities, political affiliations and other personal interests.

“In both the recruiting and screening process, you run the risk of learning and utilizing protected information,” said Eric Meyer, a partner in the labor and law practice of Dilworth Paxson in Philadelphia. “The pitfall is using it to make an employment decision.”

Allyson Willoughby, general counsel and senior vice president of people at career website Glassdoor, suggests delaying social media searches until after you have met the candidate. “Don’t do anything different with social media than you would do with a face-to-face interview.”

Once the process moves to the screening phase, have someone other than the employment decision-maker do the screening, advises Jason Morris, president and COO of EmployeeScreenIQ in the Cleveland area. “Create a firewall between this person and the decision-maker,” particularly if the screening will involve social media sites, he said.

The screener should be armed with criteria specific to the position under consideration. He or she might be looking online for certain “red flags,” such as hate speech, violent tendencies or drug use that would have a direct bearing on that person’s potential performance in the job.

Employers should keep in mind that background screening companies that use social media sites are subject to the provisions of the Fair Credit Reporting Act, under which applicants must give permission for pre-employment investigations.

Another risk to employers is that they could be sued for negligent hiring for not using information available on the Internet that might have foreshadowed bad behavior by an employee. However, legal experts say they are aware of no significant cases of this type against employers to date.

Widening the pool

A more immediate problem with using social media -- particularly the most popular sites, LinkedIn and Facebook -- is that their subscribers are not representative of the U.S. or global job applicant pools. Recent surveys show that their users have lower percentages of Latinos and African-Americans than the general population.

That puts the burden on employers to widen their job searches through other means, such as job boards, newspapers, magazines and job fairs.

Experts urge organizations to post notices on their websites that they are equal opportunity employers and that they seek a diverse pool of applicants from many sources. And employers need to recognize that there are limits to what they can and should learn.

“Employers need to be sensitive about how they get the information they need and to recognize that they may not have the right to get the information they are looking for without the employee’s permission,” said Peter J. Gillespie, an employment attorney with Fisher & Phillips in Chicago.

“Have a good policy and guidelines about the kind of information you intend to seek through social media,” said Baffa. “Why are you looking at social media? Why is it relevant to this position?”

Experts say that few employers are demanding that applicants give them the passwords to their social media accounts. “It’s a terrible practice,” said Meyer.

Employers who are federal contractors have an even greater burden. The federal Office of Federal Contract Compliance Programs (OFCCP) requires detailed recordkeeping on the backgrounds of job applicants to federal contractors and issues fines to companies it finds have discriminated against applicants.

OFCCP audits focus on the sources that contractors use to find job candidates -- that includes social media, notes Christine Hendrickson, senior counsel for Seyfarth Shaw in Chicago.

Steve Bates is a freelance journalist in the Washington, D.C., area and a former editor for SHRM Online.

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