Social Media Octopus—The 8 Tentacles That Can Grab You Unawares

Attorney Trainor is BLR’s Senior Managing Editor, HR; Bruce is editor of the HR Daily Advisor.

Tentacle #1—Sourcing and Recruiting with Social Media

It’s clear that social media is rising as a method of recruiting, and some employers are enjoying great success.

However, when you use only one source for finding candidates, there’s always the danger of discrimination charges, especially if that source isn’t well-represented by protected groups.

Whatever method you use for sourcing, be consistent in how you treat applicants, resumes, application forms, and interviews.

Tentacle #2—Background Checks on Social Media Sites

There are strong arguments for and against doing these checks, but if you choose to do them, there are ways to minimize your exposure.

First, the position against doing the checks—you’ll find out things you don’t want to know. For example:

• Membership in a protected class, that is, gender, race, ethnic background, religion, disability, marital status, or sexual orientation.
• Medical information. You might read, for example, “My mom just found out she has breast cancer—I wonder if I’ll get it,”  OR “I’m so excited; I just found out I’m pregnant.”
• Other information such as attitude toward unions.

Ultimately, the fact that you know this information can work against you in a discrimination lawsuit. As they say, you can’t unring the bell.

The position for doing social media background checks—if you don’t do the check, you won’t find out things you do want to know (for example, tendency to violence, racial attitudes, extreme behavior).

Furthermore, if you don’t do the check, it could lead to a charge of negligent hiring.

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And here are a couple of related issues.

First of all, FCRA—the Fair Credit Reporting Act.
As you know, if you involve a third party in doing your background check, you’ll need to comply with FCRA’s notification rules.

Another issue is passwords. States are starting to pass laws restricting employers from asking for user names/passwords. Most experts recommend against this anyway.

Site access rules are another danger zone. Sites have access rules that you shouldn’t violate when trying to enter. For example, you shouldn’t try to go in under a false or made-up name or under any false pretenses.

So, what should you do?

One solution, of course, is don’t do these checks. But that’s going to be hard to maintain.

If you do check, here are two things you can do that will minimize your exposure.

First, filter—that is, have someone else do the check and filter out unwanted information before reporting to you. You could use an outside firm or use an inside person not in the hiring chain.

Inside or outside, you should provide a list of what you want checked and what you want reported and then be consistent in applying your guidelines.

The second thing you can do is to limit the check to finalists only.
By that time, you’ve probably interviewed the person, and you typically know all demographic information like age, race, and gender.

Whatever you decide, train your hiring managers.

Tentacle #3—Productivity Issues

The problem of employees wasting time by overusing social media at work is simply a policy/ discipline issue. Plainly put, you can insist that employees work during working hours, and you can discipline them when they don’t.

Unfortunately, as a practical matter, it’s difficult to forbid all social media activity while at work. Employees have not only their work computers, but their smartphones and tablets. 

So set your expectations—and then when there is a problem, go ahead and discipline. If you don’t act, you are condoning the behavior. And, by the way, all the other employees are watching to see whether you act or not.

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Tentacle #4—Inappropriate Actions Toward Coworkers

These actions can consist of

• Harassment—sexual, religious, etc,
• Threats of violence
• Teasing and meanness

These actions must be dealt with just as you would if they were on paper or in person. Initiate an investigation and take appropriate actions if the investigation reveals that the actions were contrary to company policy.

In tomorrow’s Advisor, four more tentacles, plus truly practical help with writing and revising job descriptions.