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Proceed with Caution: Using Sites and Search Engines to Screen Applicants

According to a recent SHRM survey, only 18 percent of companies have used social media to screen job candidates. Most employers are still fearful of the legal risks of screening candidates, which has prevented them from implementing a social-media background check.

However, with a reported 89 percent of employers planning to use social media for recruiting this year, the need to identify and implement key parameters to safely run a social-media background check is imperative.

First, employers should identify who should run the search on the candidate.  The person making the final hiring decision should not be the one performing the actual search.  A social media search may quickly reveal protected-class information about a job candidate, which a company may not base an employment decision on. Employers do not want to rely on such information or engage in actions that can create the impression for the candidate that the hiring decision could have been based on such information.

Hiring decision-makers should delegate the social media searching to someone in the HR department or consider hiring a third-party to perform the search.  However, third-party background checks are subject to the Fair Credit Reporting Act, including outside vendor checks on potential hires through social media. Three main requirements for compliance with the FCRA include drafting a clear and conspicuous written disclaimer that a consumer report may be obtained for employment purposes; obtaining written authorization from the job candidate prior to checking up on them online; and providing the applicant with a report if the results of the background check are used to deny employment.  Employers who decide to run the search in-house should consider providing advance notice of the search to job candidates and get them to authorize the search in writing.

Second, employers should determine search methods and platforms to maintain consistency in searches.  Employers should make a list of websites to search, and utilize the same sites for all searches of all candidates. Other than the obvious Google search, most useful platforms include Facebook, Twitter, LinkedIn. It is helpful to develop and utilize a list of certain factors that will cause a candidate to be disqualified from employment consideration (i.e. sexually explicit photos, drug-references, defamatory or hate-speech).  These key identifiers, if found on the candidate’s social media profiles, should be documented and submitted to the person making the hiring decision for review.

Once search protocol has been determined, it should be documented as a written policy. Those performing searches should receive training on the policy.  Of course, employers and HR directors should consult their counsel if they have any questions before beginning to conduct social media background checks.

To learn more, join us this January 24-26, 2012 in San Francisco as Paula Weber, Employment & Labor Practice Leader with Pillsbury Law discusses legal risks from looking at employees’ and applicants’ social media presence and how social media information can safely and legally be used for online recruiting and monitoring at the Social Recruiting Strategies Conference.

Kara Mignanelli
Written by Kara Mignanelli

Ms. Mignanelli serves as Senior Vice President of People and General Counsel. In her role, Ms. Mignanelli oversees numerous aspects of the business, including, but not limited to, HR compliance and keeping a pulse on the most current regulations and compliance requirements affecting corporations as well as working to ensure quality and professionalism in all aspects of the business. Ms. Mignanelli has cross-functional experience in multiple areas including litigation, compliance, social media, privacy, employment law, intellectual property, estate planning, corporate formation, and risk management. She is responsible for all aspects of the company's legal needs and all HR. Ms. Mignanelli also created the Governance, Risk Management and Compliance summit in 2009 and more recently the HR Compliance and Social Recruiting Strategies Conferences. Prior to joining GSMI, Ms. Mignanelli was the managing associate at Boyd Contreras LLP. Her practice focused primarily on civil litigation involving business disputes. Ms. Mignanelli's litigation experience includes business litigation, partnership and contract disputes, personal injury, labor and employment law, trade secrets misappropriation, and legal malpractice. She also maintains a solo practice offering transactional legal services including estate planning, probate, family law and corporate formation. Before practicing law, Ms. Mignanelli was Director of the Social Policy Center at the Performance Institute where she managed conference production staff and successfully executed over 30 conference and training events, accounting for the largest profit generating center of the company.

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