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Social media background checks policy development

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Social Media has exploded in recent years and employers realize that social media background checks should be an important part of their hiring process. However, this can be a legal minefield. …

Social Media has exploded in recent years and employers realize that social media background checks should be an important part of their hiring process. However, this can be a legal minefield. Join Safe Hiring Solutions CEO and attorney Steve Koers for a look at social media background checks policy development.

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  • 1. Social Media Background Checks Policy Development
    Select speakers or Phone on Webinar tab
    The Webinar will begin shortly. While you are waiting please answer the following question using Twitter: @SHSscreening
    Are you conducting Social Media Background Checks? Why or Why Not?
  • 2. Inaugural SHS FREE Webinar Series
    • Provide Education- Foundation SHS was built upon
    • 3. Quick Updates:
    • 4. New products/services- iRefCheck coming soon…
    • 5. New Partners- Accupay, AppliTrack, Keystone Group
    • 6. New Integrations- AppliTrack
    • 7. Encourage Social Media to Connect & Network with our 3,000+ Users
    • 8. Twitter- customer service, network, information resource
    • 9. FaceBook- What we stand for- community work-missions
    • 10. Blog
  • Facilitators
    Mike McCarty
    CEO SHS
    Metro Nashville PD
    Domestic Violence Division
    Breaking the Cycle
    iRefCheck
    Steve Koers, Esq.
    • Lewis and Wilkins LLP
    • 11. Former Dep. Prosecutor
    Practices in
    • Business Litigation
    • 12. Employment Law
    • 13. Church Law
  • Recap of Why We Are Here?
    “The intersection of social media and the office is a potential minefield”
    Philip Gordon
    Chairmain
    Privacy & Data-Protection Group
    Littler Mendelson
    Criminal Background Checks are Not Enough
    Majority of Sex Offenders Undetected
    Social Media has Exploded
  • 14. Welcome to the Wild West 2.0
    160+ Million Blogs
    80K New Blogs Daily
    75 Million Tweeters (200 Million Registered)
    550 Million FB Users
    67 Million MySpace Users
    41 Million LinkedIn Users
    490 Million YouTube Users
    92 Billion YouTube page views per month
  • 15. Benefits of Social Media Background Checks
    Due Diligence
    Negligent Hiring
    Negligent Retention
    1st Time We Can Look Inside Applicant’s Head
    Hobbies
    Interests
    Unfiltered Character Check
  • 16. Consumer Reporting Agency
    SHS is a Consumer Reporting Agency under federal law:
    We assemble information on consumers;
    For a fee
    So
    You must operate under the FCRA
  • 17. Concerns
    How do you determine if applicant has hidden online identity?
    Separate worlds- separate identities
    Social Media check might provide false sense of security against sophisticated applicants
  • 18. Authenticity
    How do you know the site or tweet belongs to the applicant?
  • 19. So Sign Me up, Let’s Get Started…
    Well, Not So Fast…. Let’s Look at the Legal Implications
  • 20. Steve Koers
    Lewis And Wilkins LLP
    317-495-7100
    skoers@lewisandwilkins.com
  • 21. What are Some Pitfalls of Social Media Screening?
    Too Much Information (TMI)
    Photos of Applicant
    Age
    Race, etc
    Blog posts or tweets related to say personal religious beliefs, ethnicity, etc
    Learning & seeing so much that cannot be legal basis of hiring decision
  • 22. 3 Big Legal Implications
    Discrimination
    Privacy
    Authenticity
  • 23. Discrimination
    Applicants could bring a failure to hire lawsuit if employer uses information from social networking site about:
    Race
    Ethnicity
    Nationality
    Marital Status
    Religious Preference
    Age
    Etc
  • 24. Privacy
    Privacy? On the Internet?
    Argument can be made that consumers have a “reasonable expectation of privacy” on social networking sites where only “friends” are supposed to have access.
  • 25. Do I Need a Social Media Policy?
    Unlike highly structured Background Checks with credible sources
    Microsoft Survey:
    90% of Employers claim they take steps to corroborate authenticity of Online information
    But how do they corroborate?
    If Employee has a beer in a photo, does the Employer track down others in photo to confirm general lifestyle?
    Just because it is possible, it doesn’t necessarily result in better hires
  • 26. Hiring Perspective
    Powerful tool
    Not Risk-free
    Digital search leaves a discoverable trail
    Creates documentation and tracking responsibilities
    Mistaken identity, fake accounts, inaccurate info
    Old rules still apply
    EEOC, Anti-discrimination
  • 27. Hiring Perspective
    Questions to ask:
    Do we have a legitimate business reason?
    What would we learn that we wouldn’t learn form application and interview?
    How far to check
    Would we go watch their house?
    Would we watch their friends’ houses?
    Would we listen to their conversations in a restaurant?
    Why would we do this on-line, then?
    What about our own on-line information?
  • 28. Hiring Perspective
    Would we be employable?
    What is the message we are sending to our current and future Employees regarding privacy and trust?
    What are our legal risks?
    State and local rules
    Possible rights vioaltions
    Need a system
  • 29. Hiring Perspective
    If you do engage in Social Media Background checks, you need policies that are:
    Global - Search everyone who applies
    Internally consistent
    Search the same sites, all the time
    Follow up with only the same types of information
    Use same (independent) people to do the search
    Legally defensible
    DO NOT “FRIEND” OR FOLLOW AN APPLICANT
    Run your policy through your attorney
    Educate and train managers about what they can and cannot do
    When searching, evaluating and deciding on candidates
  • 30. Employment Perspective
    Social Media Policy is NOT a form of INSURANCE
    You need to carefully consider your goals
    What do you want to accomplish?
  • 31. Employment Perspective
    Temptation is to “Lockdown”
    Block or forbid all social media and all comments
    Is that the best business decision?
    Depends upon your business
    What do you want to accomplish?
    Is it even Legal?
  • 32. NLRB Issues
    Change in Board and Enforcement
    Recent Settlement
    Employee criticized supervisor on Facebook
    Employer fired Employee
    NLRB:
     illegally denied union representation 
    maintained and enforced an overly broad blogging and internet posting policy
  • 33. What Does That Mean?
    Employee posted comments, violating company Social Media Policy
    Fellow Employees responded and engaged in discussions
    To the NLRB, the responses and the “overly broad” Policy constituted “concerted protected activity”
    It is not a “Free Speech” case, as much as it is “Protected Speech”
    Employees have right to discuss the terms and conditions of employment, regardless of whether workplace is unionized!
  • 34. Suggestions for Social Media
    Do not simply copy a social media policy
    Every business is different with different needs
    No boilerplate – understand what you are trying to accomplish
    Have your attorney write or at least review your policy
  • 35. Policies and Guidelines
    Policies
    Well-defined rules
    Can and can’t do
    Often linked to laws
    Apply to ALL
    Even if no social media job responsibilities
    Guidelines
    Looser expectations
    Guide behavior that may not be easy to define or enforce
    Guide those who interact with public via social media as part of job
  • 36. Policies and Guidelines - Examples
    Policies
    Identify Yourself as Employee
    Don’t post confidential or copyright info
    Don’t post anything:
    Defamatory
    Offensive
    Harrassing
    Violating laws or other company policies
    Guidelines
    Be responsible
    Be authentic
    Avoid on-line disputes
    Add Value to the company
    Don’t disparage competition
  • 37. Legal Considerations
    Recent Cases
    NLRB
    Cisco
    Businesses need to consider:
    FTC
    Trade Secrets
    Copyright and IP
    Privacy & HIPPA
    SEC
    Agency
  • 38. Always remember the Laws!
    Consult an attorney to review policy content:
    Anti-discrimination
    Anti-harrasment
    Anti-defamation
    FLSA
    NLRA
    Whistleblower protections
    Non-solicitation and non-compete
    Negligent hiring and Negligent retention
  • 39. Contact Information
    Steve Koers, Esq.
    Lewis And Wilkins LLP
    Former Dep. Prosecutor
    Practices in many areas, including:
    • Business Litigation
    • 40. Employment Law
    • 41. School and Church Law
    Lewis And Wilkins LLP
    11206 Fall Creek Road
    Indianapolis, IN 46256
    317.495.7100 – Office
    317.495.7103 – Fax
    317.513.0798 – Mobile
    skoers@lewisandwilkins.com
  • 42. So Where Does That Leave Us?
    Legitimate Background Screening Firms will be hesitant to provide service:
    Required under FCRA to provide accurate information
    FCRA requires information to be verified
    Similar names & no identifiers
    Imitating others- cyber slamming
  • 43. Key Takeaways:
    Catch-22- “danged if I do/ danged if I don’t”
    Will need to be done in-house
    Outside of HR to filter information that should not be used
    I.T.? Who?
    FCRA will not apply
    ** BEST defense against legal action is a social media policy
    Can you blog- trade secrets, etc
    Talking about co-workers/ managers, etc
    Branding
    Protecting security
    Who owns email
    Use of social media on business time
  • 44. Questions?
    Send questions to Twitter: @SHSscreening
    Sign up for blog: info.safehiringsolutions.com
    Upcoming Webinars:
    Child Sex Offenders: How They Select, Seduce & Maintain Victims 6/23 2PM EST