A recent survey reported that nearly half of all employers conduct social media background checks on job candidates. This practice has included requiring candidates to disclose their usernames, passwords, and other credentials that provide access to their Facebook and Twitter accounts, blogs, e-mail, and other Internet content for the prospective employer’s review.
Federal and state legislators have responded with a flurry of efforts to prohibit employers from requiring candidates to disclose their social network credentials. These efforts have included calling for federal investigations about the practice, introducing bills in Congress that would prohibit the practice, and numerous state legislators introducing and passing legislation that prohibits employers from requiring candidates to disclose their access credentials to the content posted on social media cites.
What should recruiters and hiring managers do?
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If recruiters, hiring managers, and other high-level executives wish to review a candidate’s social media content, what should they do? After all, we hire a person, not just a skill set. When the open position requires a supervisor, manager, or other high-level executive, then the candidate’s so-called “soft skills” may be of primary importance in the hiring criteria. Leaders in an organization often spend most of their time motivating and inspiring people, forming teams, setting goals and a vision for the organization, and resolving interpersonal conflicts.
The most successful leaders are able to earn the trust and confidence of people, and inspire them to produce their best work. A leader’s good judgment, prudence, and commitment to the organization’s goals are critical to their success with a new organization. An individual’s postings on social media sites may demonstrate significant character flaws, bad judgment, a lack of prudence, and other significant deficiencies that render the candidate unfit for the position. Shouldn’t employers access and use such information to ensure that they are hiring a qualified executive into their organization?
Know the risks of acquiring information about the protected categories and activities of candidates.
Employers must consider the risks of acquiring information about a candidate that reveals their membership in protected categories, like their political affiliation, religious faith, pregnancy, disability or serious health condition, or information about their family’s medical history and genetic information. Employers must also consider the risks of accessing information about a candidate’s protected activity, including workers’ compensation claims or protected concerted activity under the National Labor Relations Act.
Social media has virtually replaced the water cooler as the location and medium of communication among employees about the terms and conditions of their employment. Section 7 of the NLRA provides employees the right to engage in communications online about their wages and working conditions, as long as such discussions constitute “protected concerted activity.” The law prohibits potential future employers from discriminating against candidates because they engage in protected concerted activity with their current employer.
There are several factors to consider whether an employee’s postings on the Internet constitute protected concerted activity under the NLRA. Is the employee making the complaint about their working conditions, and suggesting collective action should be taken in response to the complaint? Did the employee communicate the complaint to any coworkers? Are any coworkers online “friends” with the complaining employee? If a coworker responded to the online post, what was the nature of the response? Did the coworker make similar complaints or agree with the complaint? Did further discussions take place among coworkers about the workplace complaint? If an employee’s posting meets these requirements, and the posting pertains to employee wages, benefits, working conditions, and supervisory treatment, then it likely qualifies as protected concerted activity.
Clearly, recruiters and hiring managers do not want to have to apply this multi-factored analysis to social media postings of candidates in order to determine whether such content is protected activity, and thus cannot be a legal basis for a hiring decision. We recommend the following 10 guidelines for recruiters and hiring managers:
- Search only public content about the candidate on the Internet: The company should only include a review of social media content that is in the public domain on the Internet. Companies should not require candidates to produce their Facebook username or password, or require them to “friend” the company, or require them to log onto their Facebook site and allow the company to “shoulder surf” through their site during an interview. Moreover, a great source for candidates may be internal referrals from current employees. If the referring employee is a “friend” of the candidate on Facebook, do not make a “backdoor” attempt to review the candidate’s non-public content through the referring employee’s “friend” status with the candidate. Always respect the candidate’s privacy settings that cover their online content.
- Separate the social media researcher from the decision-maker. A designated company researcher should review public content on social sites to scrub comments about protected categories and activities about candidates before providing it to the decision-maker.
- Search public content in a uniform manner. If the company does search social media content, ensure that the searches are done uniformly for all candidates, including the same websites visited.
- Notify candidates of the company’s practice of searching public content on the Internet about the candidate. A serious problem with social networking profiles is that their content may not be trustworthy or authentic. Companies should notify the candidate of their searching practices, and verify the identity of the candidate with their social networking profiles.
- Search social media content of a candidate only after the initial interview. Companies should only conduct social media searches after the initial interview.
- Comply with the terms of service of each social media site, blog, or other Internet site. Companies should follow the terms of service of each site.
- Do not coerce a candidate to provide the company with access to their social media sites. Companies should not require candidates to provide access credentials to their social sites. Instead, the company should notify the candidate that it will be searching their public content.
- Base hiring decisions only on usable information obtained from public online content. Ensure that the decision-maker only reviews public content from the online search that is scrubbed of information about protected categories and activities.
- Document the legitimate, nondiscriminatory reasons for the hiring decision. The company should always document the legitimate, nondiscriminatory reasons for their hiring decision.
- Train hiring professionals in the company’s social media research practices. Provide comprehensive training for recruiters, human resource professionals, hiring managers, and other executives involved in the recruiting and hiring process about the company’s social media research practices.