Wednesday, May 11, 2011

Employer use of social media is becoming more mainstream

It is becoming more “mainstream” to include social media checks as part of candidate “background investigation”.  Law firms and HR consultants are starting to say that the practice is acceptable, even desirable, if done carefully.

But there are several points to bear in mind:

Despite a recent flap at the Maryland Department of Corrections, it’s generally not all right to ask for a candidate’s social media password, and it might violate the TOS rules of the social media provider.

Generally, it’s all right to look for items that come up as available to the public from search engines. But the employer should inform the candidate or employee that it will do so.  Furthermore, it is very easy to misidentify someone, especially with a common name or even with a name you think is less common. My name is rather unusual, but I use both “John” (the legal first name) and “Bill” (the nickname) online.  That has actually created an issue in the past with a school system (back in 2005). Note that Facebook and maybe some other social media sites may require that users actually disclose their own legal names, under the “one public identity” norm for “public integrity” which is an idea that Facebook says it believes in.  It is important to have a specific procedure to allow the applicant or employee to answer potentially negative information on social media, which always has the chance of being false. It is also easy to misidentify facial images on the web, and there is no guarantee that tags provided by others are correct. Employers generally do not have the accurate facial identification software available to government and intelligence, and should not behave as if they did.

It will be tricky to look at social media which are likely to disclose protected characteristics such as gender, race, and, in many jurisdictions, sexual orientation.

An article Feb. 24, 2011 by Jessica Ollenberg at “Ask HRS” is typical, with a link here

She writes “how a candidate chooses to be known on the Internet as searchable by customers, co-workers, competitors, associates, vendors, investors and other stakeholders, is certainly a BFOQ.  Such a presence affects on-duty performance, especially when easily detected by search engine or links to professional or company presence”.  A “BFOQ” is a “bona-fide occupational qualification”, and that gets touchy in an area where it is someone’s job to manipulate others socially to sell to them. It’s obviously an issue for a member of the media, where objectivity is so importance.  The best situation, from the employee’s point of view, is the situation where the job involves transmitting to the public ideas that the employee actually believes (a good example would be Anderson Cooper’s responsibilities as a CNN host for his “keeping them honest” on AC360).

Stokes, Lazarus & Carmichael at “Atlanta Business Litigation Lawyers” has a similar article from January 2011 in a paper “Considerations when screening applicants with social media” here.

Workforce Management also has an article on the topic this month, subscription required.  

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