“Social media networks and blogs are now the fourth most popular online activity, ahead of personal e-mail,” says Attorney Cynthia L. Gibson. And they are getting more popular with HR for background checks. Unfortunately, she says, once you turn up information you don’t want, “you can’t unring the bell.”
Gibson is senior vice president, Legal, for Scripps Networks Interactive, Inc. She offered her suggestions at the recent Society for Human Resource Management Legal and Legislative Conference in Washington, DC.
Social Media Challenges
Gibson suggests that HR managers consider the following issues that typically come along with social media.
Background Checks
According to surveys, 44 percent of employers use social networking sites to examine the profiles of job candidates, and 39 percent have looked up the profile of a current employee, Gibson notes. Some say they find negative information such as provocative or revealing photos or information, while others find good information regarding a candidate”s personality and fit.
“Some experts say, ‘Don’t do these checks,’ but in the real world you have to do the best background checks you can,” says Gibson.
She cites one case where, ironically, a company was looking for a new “Head of Ethics.” A full background check revealed nothing untoward. However, the company’s own Google search revealed a job that the candidate hadn’t mentioned on his résumé, a job which he had left under questionable circumstances.
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You Can’t Unring the Bell
During a social media search, you may discover information that could lead to a claim of discrimination, Gibson says. For example, you might find out about protected class status, race, age, national origin, veteran status, gender, sexual orientation, legal off-duty activity, political affiliation, or disability, or you might see that the person is a member of the Cancer Survivors Club.
Unfortunately, says Gibson, once you find out the information, you can’t unring the bell and pretend that you never saw it.
Be Aware of “Use Policies”
If you ignore websites’ “use policies,” you may further a claim, Gibson says. For example, the Facebook use policy says “If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it.”
Reliability of Information
There are always issues of reliability with Web searches, says Gibson. For example:
- Identity confusion. Is the person you found the same person you are looking for?
- Posting confusion. Who posted the information? Was it the person you are looking for or someone else with, perhaps, malicious intent?
- Online cleanup. Numerous third-party vendors are available to monitor and “clean up” individuals” online reputations. They can flood the Internet with positive information that pushes the negative information down to the 20th page of Google results. Examples are:
- Naymz.com
- Brandtitan.com
- Defendmyname.com
Managers, friends, and connections. Are managers “friending” some employees and not others? Is pressure applied to “join my group” (Christians, women, etc.)? This could be potential trouble, Gibson says.
Evidence in litigation. “Social media provide a potential ‘treasure trove’ of information—for you, your employees, and your competitors,” says Gibson, which can show up in court when you least want to see it.
Disclosure of confidential information and trade secrets. Employees need to be carefully instructed concerning proprietary information, Gibson says. In DVD Copy Control Assoc. v. Bunner, the Supreme Court of California held that widespread dissemination of a trade secret—even if through an inadvertent or illegal leak—could lead to the loss of trade secret protected status.
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Copyright violations. An employee who publishes a misappropriated third-party trade secret or copyrighted material on the Internet may be liable. If the employer’s computer system was used, a potential claim could be made against the employer.
Negligent hiring and retention. Claims may be made against employers that ignore expressions or a record of violence.
“The overriding point is that you want your people educated that accessing social media for business purposes is not risk-free,” Gibson says.
In tomorrow’s Advisor, Gibson’s action steps for employers and a look at a time-saving collection of prewritten HR policies.
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