Should you stop using social media to pre-screen your applicants? Many of you may be contemplating just that if you read last week’s post (click here)! Can an employer conduct its due diligence and still, avoid even the possibility of discrimination allegations–or worse, a lawsuit? Yes, it can! We are going to cover that now, so read on to learn how you, the employer, might protect yourself while getting the information you need!
Here are some steps an employer should consider:
- Use uniform and consistent screening methods: Following the same process for every candidate, makes it much easier to defend against allegations that you only engaged in your process based on the candidate’s membership of a class protected by federal and/or state anti-discrimination laws. Following a random process of only checking out some candidates on LinkedIn, Facebook or similar sites, leaves you much more vulnerable to such allegations and lawsuits. Also, use the same sites for each candidate.
- Maintain a list of sites you use for screening: Decide in advance which social media sites you think are most relevant. You do not have to, and perhaps should not, use sites that are primarily social environments that might not contain much job-related information. Many employers therefore do not check Facebook. If however, you suddenly search Facebook, because you have heard rumors that a particular candidate has political views that you dislike, you again run the risk of discrimination allegations and/or claims. Therefore, decide in advance where you search, maintain the list, and, most importantly, use that same list in the same way for every candidate.
- Determine in advance what information you are looking for and the criteria you will use for screening: This is very important! You want relevant, work-related information. You probably do not need to know about a candidate’s legal activity conducted during non working hours; you probably do need to know if s/he behaves violently, makes threats of violence, sends hate messages against minorities or ethnic groups, has a pattern of bad-mouthing previous employers, or has been misleading about his or her education or experience.
- If you do not plan on screening everyone, be clear and consistent about– and document– which people, or groups of people you will not be screening– and why: You do not have to perform a social media search on everyone. Make sure then, that you can articulate or point to a written policy as to who you are and are not screening, in order protect yourself against allegations that your stated reasons are a pretext and the real motive was discrimination.
- Appoint someone not making the hiring decisions to conduct the social media screen and filter out information that is not job-related: This is perhaps one of the best tools for insulating yourself from discrimination liability in your pre-employment screening process. An HR employee who does not make the hiring decision can conduct the search and filter out information about the person’s race, ethnicity, religion, disability, if any, political beliefs, age, etc. If you or one of your hiring managers then the candidate, you cannot have discriminated based on information that you never had.
- If you reject a candidate based on information from a social media (or general internet) search, make sure you base it on clear, legitimate hiring requirements, and document them: Frankly, all employers do this even if they do not use social media or search engines to screen candidates to help refute, if not fend off, discrimination allegations.
- If you use, or intend to use, outside companies/vendors for any of your screening, consult with counsel as to whether the FCRA applies, and if so, make sure you are complying: If the vendor you are using meets the legal definition of a Consumer Reporting Agency it will be subject to the FCRA (Click here for review) and, if you engage them, so will you. You will then be vulnerable to lawsuits based on FCRA violations if you are found to be non-compliant.
- Develop written policies and procedures on use of social media in the hiring process and apply it uniformly and consistently. If you have a set of policies and procedures that you follow consistently when using social media to screen candidates, you can at least refute, if not fend off, any claims that in screening a particular candidate in a particular way, you were treating him or her differently based on him or her being a member of a protected class under federal or state EEO laws. I know that in a number of previous posts, I have emphasized the importance of having written policies and procedures. While I do not like to sound like a broken record, time and again, I have found that many employers neglect to take this step–so I’ll take that risk!
- Train all staff involved in screening and hiring on applicable laws, such as Title VII, the ADEA, the ADA, GINA, the FCRA and any other similar or related state or federal laws, how these laws impact use of social media to screen candidates and your policies and procedures regarding social media and pre-employment screening: To many, this may seem like common sense and should go without saying. Again, I hear of and encounter many employers who do not do this and thereby make themselves easy targets in this area. If you are a business owner with well-written policies and you know about the applicable laws, but others involved in hiring do not know about your policies or the applicable laws, your policies will not help you. Any time you develop a policy, you should make sure to train managers and others who should be implementing them.
- Consider obtaining your candidates’ consent prior to screening and providing an them an opportunity to refute or explain any negative information you find: These steps are already required under the FCRA. If the FCRA does not apply however, you might still want to take these steps in the event you get information that is simply incorrect. Suppose, for example, you do an internet search on your candidate, and you find a Facebook comment about the person on someone else’s page. If you reject your candidate based on that information, without first speaking with your candidate, you may not only be rejecting an otherwise solid candidate based on false or misleading information, but if s/he is protected under federal or state EEO laws, you again could be vulnerable to discrimination claims.
While this list is not meant to be exhaustive, it hopefully provides some direction as to how to conduct your pre-employment screening process when using social media as one of your screening tools.
Next week The Emplawyerologist will begin covering another “hot” topic: I-9’s. Don’t miss it!
Do you use staffing agencies to meet your staffing requirements? If so, click here to read my latest post about how the ADA applies to “temps” on The Staffing Stream , a blog published by Staffing Industry Analysts.
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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