Special from the Advanced Employment Issues Symposium, Las Vegas
The biggest mistake I see managers making is failure to document, says attorney Molly DiBianca, member of the Employers Counsel Network (BLR/M. Lee Smith’s network of attorneys from all 50 states). And the number two mistake is casual background checks on social media.

DiBianca’s remarks came at BLR’s Advanced Employment Issues Symposium, held November 17-18 in Las Vegas.

Documentation Failures Doom Defense

“The mistake I often see is failure to document or failure to document well,” says DiBianca, who is with Young, Conaway, Stargatt & Taylor LLP in Wilmington, Delaware. “Your defense falls apart if you don’t have documentation to back it up.”

“The problem is that managers just don’t do it,” she says. “You have to train them and you have to keep after them.”

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Casual Online Reference Checking

Another mistake that DiBianca sees is casual background checks on social media. If you are going to do them, consider the following to reduce liability, she says:

1.  Decide beforehand what you will be looking for (e.g., illegal activity), make a list, and clear the list with your attorney. Keep the list to five items.
2.  Limit your search to final candidates.
3.  Make sure the searcher and decision maker are different people (as James said, the best defense is that the hiring manager didn’t know about whatever impermissible information was uncovered).
4.  Document your search, what you searched for, and where you searched.

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5. Let the candidate know that you are doing the search.
6. Share the results with the candidate if you are making a negative determination based on it, and especially if you have reason to doubt the validity of the information.
7 .Control hiring managers. One casual survey found that only 10 percent of HR departments were doing social media background checks but 100% of hiring managers were doing them!

In tomorrow’s Advisor, more mistakes managers make, plus an introduction to our popular collection of pre-written job descriptions

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