Social Media And Employment Screening

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Lakesia Wright

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Social Media And Employment Screening

  1. 1. Social Media Employment Screening “What harm is it?” Ted L. Moss, CPP TedLMoss.com
  2. 2. Social Networking 2 Social networking; it’s fun for some, annoying to others and still others don’t have a clue what it is. I was one of the annoyed ones. Of course I also thought the Internet was a fad, much like CB radios! Who has time to sit at the computer and tell everyone about every little detail of their life and for Pete’s sake why? Plus uploading every picture of your dog, cat, baby and Aunt Martha’s surgery scar is weird. I was a dissenter, part of the resistance “Viva La Legal Pad!” was my motto. I must admit now that I am amongst the converted. I have reconnected with old friends from high school, business colleagues and an old girlfriend or two. It is fun to live vicariously through others. I have been on vacation, to the bar, weddings and in their living room through their photo albums. I know the names of their kids, dog, cat and annoying neighbors. I see their political philosophical and religious views from far left to far right. God I know a lot of wacko’s! Admittedly, there are things I have learned that I would rather not know. It has been enormously satisfying however, to see how my old and current friends are fairing and to just make a funny comment or two about their life. Sometimes it brightens someone’s day to know that old friends still care. In my business of employment screening there has been a lot of discussion about using social networking when conducting a
  3. 3. Social Networking 3 background check. The practice seems to be becoming more popular either as a preliminary screening tool prior to an interview or subsequent to an application and interview. It has been said that if Facebook were a country, it would be the 4th largest in the world. It seems to make good sense then, to check sites like Facebook for insight into a candidate. Social media checks however, are fraught with pitfalls if examined a little more closely. In this report I will examine the value and risk involved in utilizing social media and networking as sources of information as part of the background check and hiring process. Consider this for instance: Title VII of the Civil Rights Act of 1964 (Title VII), prohibits employment discrimination based on race, color, religion, sex, or national origin! http://www.eeoc.gov/facts/qanda.html How does this affect social networking checks? Well, could an employer discern from a MySpace or Facebook profile information such as race? How about national origin or sex? You bet they could. The profile photo alone allows persons to easily infer race, sex and sometimes nationality. Groups they belong to can distinguish national origin and religion.
  4. 4. Social Networking 4 So what does this mean? Who cares if I know a candidates personal traits and lifestyle up front? OK, let’s suppose you get a resume and decide to Google that person and find their Facebook or LinkedIn page. You notice certain things about them and make notations on the resume. “Oh they are single!” “That’s great because I need someone committed to the job!” “Better yet they are a Blue State kind of person…I can’t stand those Red State guys!” Now is that useful? Of course it is! We all admittedly are biased toward those with like thinking. Similar outlooks and philosophies help us integrate a candidate into our corporate culture. The sinister part of utilizing such a practice is that it is most likely a discriminatory method of evaluating prospective employee’s qualifications. The practice of pre-screening with social media gets exponentially complicated as one starts to delve into the possibilities a little more.
  5. 5. Social Networking 5 More Pitfalls: Discriminatory Practices Are Prohibited by Law! Under Title VII, the ADA, GINA, and the ADEA, it is illegal to discriminate in any aspect of employment, including: hiring and firing; compensation, assignment, or classification of employees; transfer, promotion, layoff, or recall; job advertisements; recruitment; testing; use of company facilities; training and apprenticeship programs; fringe benefits; pay, retirement plans, and disability leave; or other terms and conditions of employment.
  6. 6. Social Networking 6 Discriminatory practices under these laws also include: harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age; retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices; employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual's genetic information; and denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group. http://www.eeoc.gov/facts/qanda.html
  7. 7. Social Networking 7 Notice, the fact that decisions based on stereotypes or assumptions can land an organization in, “Hot Water” is pretty clear. It seems obvious that Social Media Sites are a Pandora’s Box of information which in untrained hands could lead to more trouble than they are worth! Troublesome Congress: It seems like people, especially Congress, have been making it harder and harder for business owners, managers and HR professionals to hire the right people for the right job. I have spent almost 30 years in the field of retail Loss Prevention, Industrial security, Private Investigations, Law Enforcement and Employment Screening. In that time I have seen a multitude of laws passed that either restrict or flat out prohibit what tool employers can use to select the people they need to do the job. It used to be that a person’s past associations; character, work ethic, honesty and standing in the community were expected to be a measure which an employer would use to determine job suitability. One commonly used method of verifying a person’s character in years past was the polygraph test. Yes, a lie detector! I had one of those, it was called my Mom; she was uncanny in her lie detection skills. The polygraph test however was outlawed in 1988 by The Pre- Employment Polygraph Protection Act. Without a Mom or a polygraph to turn to, employers began conducting background checks on a broad scale. Congress reacted with more laws! The FCRA (Fair Credit Reporting
  8. 8. Social Networking 8 Act) and The DPPA (Drivers Privacy Protection Act) to name just two give applicants and consumers very specific rights when it comes to what information can be used, how and by who for employment background checks. The age of privacy had begun and was only going to get worse. With the advent of the internet employers could get more information quicker and at a cost effective price. This blessing of quick and easy information however has led to its misuse. Mostly unintentional, the misuse of data underscores the need to understand how and when it can be used. As a result a slew of employment screening services have led to the explosion of a burgeoning employment screening industry. These providers of vetted, accurate and legally compliant data are usually the best bet when dealing with so many complex issues. What other Laws might apply? Federal Equal Employment Opportunity (EEO) Laws What Are the Federal Laws Prohibiting Job Discrimination?
  9. 9. Social Networking 9 Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin; we have covered this previously! the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination; the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older; Do you think age is available on a social media site? Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments; Interesting point, could a hiring manager or recruiter assume a disability from a photo on Facebook? Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; What if your applicant discusses a genetic diagnoses on their media page?
  10. 10. Social Networking 10 The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination. $$$$$$$ The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. http://www.eeoc.gov/facts/qanda.html Where do you go from here? Should I conduct social media checks? If so when; before or after hire? Well don’t fret, I have the info! A recently conducted survey shows that nearly 1 in 2 companies are doing their online due diligence for prospective job candidates, this according to research firm Harris Interactive, who was commissioned by CareerBuilder.com and surveyed 2,667 HR professionals, finding that 45% of them use social networking sites to research job candidates, with an additional 11% planning to implement social media screening in the very near future. According to the survey employers have found both negative and positive information which affected their hiring decision. So clearly there is a growing acceptable trend in this area. There is no legal precedent to date which clearly defines social networking sites as either public or private. If an applicant posts on a public forum their life for others to see it seems reasonable to consider that information tantamount to a public record. According to a recent article in The National Law Review, Management-side lawyers are
  11. 11. Social Networking 11 warning employers about the hidden dangers of LinkedIn, the popular business networking site that posts recommendations for job candidates. Specifically, attorneys are advising employers to be wary of giving glowing remarks about employees on the site because the employers risk having the recommendations used against them in a discrimination or harassment suit. Baldas July 2009 The article maintains that the popular business networking site LinkedIn which has recommendations posted by previous employers and or supervisors is fertile ground for discrimination suits. Plaintiffs' lawyers, they fear, are scouring these sites, looking for evidence to dispute firings, as most LinkedIn recommendations are positive. So if a supervisor claims that an employee was let go due to performance problems but gave a rave review about him or her on LinkedIn — that, the lawyers stress, won't look so good. "That could prove problematic if a plaintiffs' lawyer is mining these sites," said Wayne E. Pinkstone of the Philadelphia office of Atlanta's Fisher & Phillips, who represents employers in work place disputes. "The whole social networking issue is something that's on our minds as management- side employment lawyers. And because of the explosion in [LinkedIn's] use, we suspect at some point that we're going to see its use pop up in litigation....It's probably only a matter of time." Pinkstone, for example, has handled several wrongful termination lawsuits in which an employer claimed that an employee was let go due to job
  12. 12. Social Networking 12 performance issues, but the employee claimed it was discrimination- or harassment-related. To bolster their argument, he said, the employee can now turn to LinkedIn and say, "and here's the proof. Baldas July 2009 This article demonstrates that the use of these sites is problematic at best and at some point in the future asking for a legal precedent to be set. One aspect of this argument might be that if this information is with us then how can we use it responsibly? Utilizing the information gleaned from a social media site on the front end, that is the pre screening or pre interview phase, might be the bigger can of worms. However if one were to advise the applicant in writing prior to checking any site, as part of the background authorization process, regarding the full scope of inquires to be made then the risk of reprisal might be mitigated. Disclosure is the key when it comes to employment screening. The FCRA which specifically deals with “Consumer Investigative Reports” is fairly clear that subjective information can be used to judge candidates job worthiness. Disclosing to that candidate what you will check, how it will be used and providing notification of any adverse demonstrates a reasonable compliance with the act. In the absence of any specific legislation the test should be; Is the information obtained relevant to the job at hand? Does it create a disparate impact or discriminatory standard?
  13. 13. Social Networking 13 Have I notified the applicant adequately of my intentions and their rights? Is there a dispute mechanism in place for the applicant to rectify inaccurate information? For additional information on this and other topics go to http://www.crimcheck.com/background-check-news/

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