Candidates are using social media in record numbers, giving employers a tempting insight into how candidates – and employees – behave in their “off-hours.” But what are the legal ramifications of using internet searches, networking sites, and social media to examine detailed public information about job candidates? Social media prescreening and human resource (HR) selection practices have the potential to offer information that goes beyond traditional background screenings and into uncharted waters. Here we examine the legality, ethics, and best practices related to screening job candidates using social media, as well as cautionary measures and recommendations regarding the practice.
Social Media by the Numbers
Social media has had a dramatic effect on almost every aspect of our lives, including our work life. To find qualified candidates in an increasingly competitive marketplace, recruiters have embraced social media as a way to recruit and engage hard-to-find candidates. According to a survey conducted by HRO Today in November 2018, social media is no longer seen as optional, it is an essential component of life with 84 percent of organizations reporting that they use social media for recruiting. Over 80 percent of the time it is used for both management and non-management jobs, and 45 percent of the time for executive/upper management jobs1. Overwhelmingly, recruiters use LinkedIn (93 percent), with Facebook as a close second (82 percent).2
Clearly, social media as a recruiting tool is here to stay – but what about the use of social media to filter candidates? Or decide between two interviewees? Or to monitor the activities of existing employees? Are companies setting themselves up for ethical quandaries, or worse, litigation, by using social media as part of their human resources strategies? In this paper, we will examine how companies can create social media policies that maximize the benefits of these powerful mediums, while minimizing the potential pitfalls they represent.
Navigating the Risks
You don’t have to look far to see the potential legal risks that using social media as a screening tool raises for employers. The case of Gaskell v. Univ. of Kentucky3, is an example of what can happen when an employer uses information gathered from social media as part of the hiring process. Dr. Martin Gaskell sued the University, claiming that university staff used information found on LinkedIn to deny him employment, violating his rights under the Civil Rights Act. The case was eventually settled before going to trial, but not before it cost the University a great deal of money and negative publicity.
In 2012, Neiman v. Grange Mutual Casualty Co., gave employers another reason to carefully weigh the benefits of social media versus the risks. In the lawsuit, a candidate alleged that they were discriminated against because of their age which was revealed when the company reviewed the candidate’s LinkedIn page. While the company was ultimately vindicated,4 the cost of mounting such a defense is significant and must be considered when a company answers the question about social media and recruiting for themselves: will we or won’t we? Is it worth the risk?
The risk is real and encompasses a long list of complex laws and regulations including the Fair Credit Reporting Act (FCRA), Equal Employment Opportunity Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. All prohibit employers from basing employment decisions on factors such as age, race, national origin, religion, marital status, and genetic information. In addition, there are state laws that protect additional characteristics (e.g., sexuality), provide statutory or common law privacy protection, or protect legal off-duty activities; all information that is readily available on LinkedIn and Facebook.
New Problems, New Solutions
To mitigate these risks, the industry has evolved creative solutions that allow companies to gather FCRA-compliant information without exposing companies to litigation and fines. Companies have the option to engage a third party provider to review social media profiles on their behalf. The provider uses a strict framework to give employers access to the background information they need, while removing any chance that decision-makers could be influenced by information that violates federal, state, and local laws. Despite the risks, a report by Sterling Talent Solutions found that 95 percent of the responding companies are conducting these social media checks internally.5
Given the additional cost and implications of conducting a social media screening, companies may reserve this level of scrutiny for key moments in the hiring process and/or only for certain positions. For example, a social media screening might only be used for C-suite level executives after a position has been offered as a way to ensure the candidate does not have a social media presence that might damage the reputation of the business. The scope of this review would include potentially illegal, violent, intolerant, or explicit behavior.
Another option companies can use to protect themselves is to ask candidates/employees to consent to a social media screening in writing. This not only notifies the candidate/employee of your intent, it allows them to voluntarily opt-in, or out, of the process. Regardless of the path you take, the decision to use a social media screening is highly subjective and should reflect each company’s unique budget, polices, risk tolerance, and corporate values.
The Ethics of Social Media
Beyond the legal implications, the policies a company puts in place to govern its social media practices is a reflection of their employment brand and ethical standards. For this reason, it is important for each company to carefully review their internal social media policies including if, and how, social media should be used during the recruiting, screening, and hiring of prospective employees. Just some of the topics that can be addressed in a corporate social media policy in regards to hiring include:
- When/how each social media platform can be used (recruiting, interviewing, screening, during employment, post-separation)
- Clearly defined standards for what is/is not relevant
- Guidelines for posting company/job-related information (length, brand voice, images, etc.)
- Content that is prohibited (confidential, proprietary, inflammatory, etc.)
- Authorized posters/topics
Examples of corporate social media polices that reflect employment brand:
- Edmunds Inc. uses an infographic, referred to as Edmunds’ Rules of the Road, to provide employees with critical information regarding social media in a way that stays true to the Edmunds culture.
- IBM employees helped to create the company’s Social Computing Guidelines, which are comprehensive yet clearly evoke the company’s employment brand of inclusiveness.
- The UK Civil Service provides guidance for different types of employees with an emphasis on common sense.
Business Efficacy: Measuring Your Results
Businesses are tasked with being good stewards of their resources which includes both hard and soft expenses. The ability to track the hard costs of social media often comes down to a percentage of the overall recruiting budget. In HRO Today’s report, the average percentage of recruiting budget allocated for use of social media is 15.9 percent, with nearly two-thirds (65 percent) of respondents allocating less than 20 percent of their recruiting budget to social media.3 While this seems like an overall small percentage, the expenses must be weighed against measurable benchmarks like career page/website traffic and the percentage of candidates/hires that show social media as their source.
Without tracking and reporting, the soft expenses of social media are harder to quantify. Social media can easily be a rabbit hole that eats up hours and hours of time with little to show for it. To get an idea of how much time your company is spending on social media, ask your recruiters to track the time they devote to social media each week. That number, multiplied by their average salary, and compared against the benchmarks above, is another way to measure the value of your social media efforts on your bottom line.
With over 40 years of recruiting experience, AgileOne’s experts have gathered a list of best practices to help you weigh the value of social media on your hiring practices.
- Focus on employment-based social media sites like LinkedIn
- Provide social media training for hiring managers to create safeguards against bias
- Develop internal social media guidelines for hiring that standardize the process, including a criteria of what is relevant to protect the validity of results
- Get written permission from the candidate to review their social media
- Screening practices should demonstrate decisions which are made objectively and based on the job description
- Review a candidate’s social media later in the process or after a job offer is made (with the offer contingent on the results of the screening)
- When in doubt don’t do it; if you do it, do it cautiously
Bringing it All Together
Social media is here to stay, so it is up to each company to set the standards for how they will use this powerful tool to maximize value and minimize risk. If you don’t already have a social media policy in place regarding your hiring practices, now is the time to create one.
Not sure where to start? The ActOne Group has the resources to support your business initiative at every level. For your staffing needs, AppleOne has the experience to quickly and easily engage a wide range of workers, and AllSTEM specializes in recruiting science, technology, engineering, and math (STEM) talent. AgileOne, the workforce management division of the ActOne Group, provides technology and program solutions able to support the engagement of all types of workers, in locations around the globe. Want to give your background checks an upgrade? A-Check Global can help. No matter how large, or how small, the ActOne Group is here to make hiring simple.
1 Use of Social Media in Recruitment Strategy, January 2019, Shared Expertise, HRO Today Research Report, Volume 3, issue 2
2 Using Social Media for Talent Acquisition, September 20, 2017, SHRM, shrm.org/hr-today/trends-and-forecasting/research-and-surveys/pages/social-media-recruiting-screening-2015.aspx
3 Top 10 Considerations When Using Social Media in the Hiring Process, Bally, K., July 2014, Gaskell v University of Kentucky, 110 Fair Empl. Prac. Cas. (BNA) 1726, 93 Empl. Prac. Dec. P 44,047. https://www.acc.com/resource-library/top-ten-considerations-when-using-social-media-hiring-process-us
4 Neiman v. Grange Mutual Casualty Co., No. 11-3404 (C.D. Ill. April 26, 2012)
5 Background Screening Trends Survey, 2017, Sterling Talent Solution