A common thread in social media cases is that the supervisors have overreacted, says attorney Molly DiBianca. Supervisors aren’t ready for negative social media comments about themselves, and they take the comments personally. That can lead to some bad decisions.

Dibianca, with the law firm of Young, Conaway, Stargatt & Taylor LLP in Wilmington, Delaware, made her remarks at the Eastern Region meeting of the Employers Counsel Network, held recently in Old Saybrook CT. The Network is comprised of attorneys from all 50 states and Canada, who write the 50 state employment law letters published by BLR/M. Lee Smith.

It’s important to prepare managers and supervisors for being talked about. No one likes to be talked about online, says attorney Molly DiBianca, but with social media it’s going to happen. So, you need to prepare your supervisors so they know how to react.

As an example of the kind of social media problems managers can generate, attorney David Fortney told of an employer who instructed employees to use LinkedIn, but didn’t understand that LinkedIn mines Outlook contact lists. The effect was that the employer’s customer database was uploaded, and not much the employer could do about it. (Fortney is a co-founder of law firm Fortney & Scott, LLC in Washington, DC, and is editor of Federal Employment Law Insider.)

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Social Media Background Searches

Dibianca lays out the ground rules for doing background checks on social media sites:

1. Set a policy of what you are going to look for.
   
2. Tell the applicant in advance: “Here’s what we look for; if we find something, we’ll tell you.” “I’m not in favor of surprises,” DiBianca says.
   
3. Separate the searcher and decision maker. That way, if the searcher comes across information that shouldn’t be considered in making a hiring decision, such as protected class, the searcher won’t pass that forbidden information along to the decision maker.
   
4. Tell the applicant if you are making a negative decision based on what found online. Perhaps there is a good explanation, for example, that you’ve got the wrong person’s page.

Gaining Access

One suggestion for gaining access to someone’s social media pages without asking for permanent access: Have the person “friend” you for 24 hours. You get your chance to look at the page, but then the privacy returns.

How can you be sure your supervisors and managers are following your policies on background checks? Or anything else for that matter? There’s only one way—regular audits. The rub is that for most HR managers, it’s hard to get started auditing—where do you begin?

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