Should employers use social media to screen candidates? A good question without a right answer; it’s a gray area both in the law and company policies, especially because many employers don’t even have a social media policy. However, there are pros and cons to utilizing social media and search engines in the hiring process, and hiring managers want to know—to snoop or not to snoop?

First, let’s take a look at how many in HR say that they use social media in the hiring process. A significant portion of employers do use social media but not for screening job candidates. According to recent data from the Society for Human Resource Management (SHRM), 77 percent of all employers surveyed “are increasingly using social networking sites for recruiting, primarily as a way to attract passive job candidates.” Far fewer employers — just 20 percent — use social sites or online search engines to screen job candidates.

Even with legal dangers overhead, some employers feel that using social media gives them another powerful tool to protect their interests, especially when it comes to hiring the right kinds of people and building an effective workforce. Take a look at these three key legal concerns.

Privacy: Employees and job applicants expect and are entitled to a reasonable level of privacy. State and federal laws, as well as the contractual terms for some social media services, may limit your reach into a prospect’s profile.

Discrimination: Title VII of the Civil Rights Act and state laws prohibit employers from making hiring decisions based on protected class information — information that could be seen inadvertently on a job applicant’s profile.

Accuracy: The Fair Credit Report Act (FCRA) requires maximum possible accuracy in background checks. If you can’t prove something, you shouldn’t use it.

Alongside the risks, there are seven crucial dos and don’ts as you determine whether or not you should be using social media in the hiring process.

1. Do designate a project owner. Consider putting a knowledgeable, well-trained individual in charge of reviewing and vetting the information found on social sites before turning the information over to the hiring manager.
2. Don’t ask candidates for passwords. It’s already illegal to request passwords in six states, and 21 additional states are considering similar legislation. Asking for passwords may also damage your company’s reputation (if candidates start spreading the word) and employment brand, making it harder for you to engage and hire top talent.
3. Do consider FCRA implications.The FTC has been calling out web services for acting as consumer reporting agencies when supplying employers with aggregated social media data for employment. This means that employers who use such sites have to follow Fair Credit Reporting Act (FCRA) procedures and obtain prior written consent from job candidates to conduct a search and also supply them with advance adverse action notices.
4. Don’t believe everything you read and see online. Verifying the accuracy of information you find online can be extremely difficult, especially in a world of user-generated content, photo-altering software and open networks.
5. Do beware of TMI (too much information). In fact, be prepared to find more information than you want, need or can use legally. A simple Facebook search could turn up information that, if used against a candidate, could result ina Title VII discrimination claim. Remember, information readily available on a public page (religion or race, for example, gleaned by glancing at a profile picture) is protected class information. And once your hiring manager sees it, you cannot “un-ring the bell.”
6. Don’t use social media inconsistently. One danger of using social media lies in applying it inconsistently — in other words, conducting an exhaustive social search on one job candidate but doing only a cursory investigation on another. If your internal search practices are scrutinized, inconsistency could lead to legal problems.
7. Do create a written policy for using social media in the background screening process. Make sure that applicants are not taken by surprise and are made aware of the policy in advance. Work with your attorney to make sure that the policy defines your search parameters, who reviews the results, privacy considerations and what information you are and are not looking for.

About the Author: Nick Fishman co-founded EmployeeScreenIQ in 1999 and serves as the company’s Chief Marketing Officer and Executive Vice President. He will be a guest on the December 10th #TChat Show.

photo credit: faungg’s photo via photopin cc