In a world that uploads so much information online, it is only natural that employers are using this resource to their advantage. While a standard criminal background check is a good investment and can help shed light on the past actions of a potential employee, an applicant’s social media can give you a glimpse into his or her recent activities.
A social media search appeals to companies especially concerned with mitigating legal risk. These investigations search for aggressive or violent acts or assertions, unlawful activity, discriminatory activity, and sexually explicit activity. The attraction to these types of investigations is the perceived freedom of information provided; however, there are lines that should not be crossed when conducting social media background checks.
To ensure that a hiring manager is on the right side of the law and is ethically sound, there are a few best practices that employers should follow when searching social media.
When conducting a social media background check:
DON’T “friend” the applicant. This places you and the candidate in an awkward position, and can be considered a violation of privacy. Instead of sending an invitation to connect with the potential employee, use the information you, and your clients, could find publicly.
DO use only public information. Relying on information that is accessible to all is the only fair way to vet a candidate online. Much like in an interview, the public information is what the candidate has chosen to share and pushing further could lead to legal issues.
DON’T request a username and password. This is an invasion of privacy and is often considered illegal. Outlined in the Computer Fraud and Abuse Act, the Department of Justice indicates that violation of the terms of service of a website can be considered a federal crime. Some platforms, such as Facebook, regard any user request for another user’s login information to be such a violation.
DO know your state’s laws. Certain states have additional restrictions beyond the Computer Fraud and Abuse Act, so verifying what you can and cannot search for before starting is crucial to avoiding legal action. Legislation for increased social media privacy has been introduced or is pending in at least 28 states, with laws being enacted in Louisiana, Maine, New Hampshire, Oklahoma, Rhode Island, Tennessee, and Wisconsin.
DON’T pick and choose platforms. Each potential employee should be vetted equally in every stage of the hiring process, social media included. Specifically, select the platforms you will be searching and use only those when researching candidates.
DO focus on information that is relevant to the job. While you might find out a lot of personal information about the candidate, you should only judge that which pertains to the position. A candidate’s religious or political beliefs, for example, cannot be considered in the hiring process.
DON’T hide that you’re searching. A potential employee has the legal right to know that you are researching their personal life and to verify that you are searching the correct profiles. If your candidate has a common name and has chosen not to share a picture, you could end up investigating the wrong Jane Doe and coming to the wrong conclusion about your potential employee.
DO allow the candidate to explain any details that may affect employment. Social media platforms are not infallible; profiles can be hacked, users can be tagged in photos without their consent, friends can post comments without permission, and false pages can be created that impersonate a user. Allow the candidate to explain any salacious findings rather than immediately eliminating him or her from consideration.
DON’T look too early. The search should only be performed after the initial interview, as you would not have legal cause to look up the candidate until after that time.
DO document your reasons. If you choose not to hire a candidate based on the social media search, it is best to document the legitimate, nondiscriminatory reasons for the hiring decision in as much detail as possible. Taking screenshots of the issues and describing what you found is recommended, in case the evidence is removed or the candidate claims it is for another reason.
DON’T get too close. While it might seem easier for the hiring manager to do the social media searches, this can color favor in specific directions. It is best for the research to be conducted by a third party and then given to the hiring manager to include in decisions.
DO hire a reputable company. One way to ensure unbiased searching is to hire a background screening company. Not only will the company present fair and unbiased data, but it can ensure that the social media check is FCRA-compliant and completely legal. Also, these businesses can remove any personal information that should not be included in the decision-making process.
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