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Observing the Niceties of Using Social Media to Evaluate Current and Potential Employees

By Randal Cole

The explosion of social media over the past decade has been one of the most consequential developments in history. Emerging platforms and evolving practices have profoundly changed the way we connect and communicate with each other. This is because social media is much more than “social.” Sites and apps ranging from Facebook and LinkedIn to Twitter and Instagram have become places to exchange views, forums for debate and engagement, and places where people share big ideas and reveal essential information about their character, personal perspectives and professional capabilities.

For professionals, social media has become both a communications tool and a resource, especially when sites like Blogger, Medium and WordPress are considered. These platforms allow individuals in a wide range of fields to talk to each other and gain the exposure they need to attract interest from recruiters. At the same time employers understand that social media offers unmatched opportunities for branding, marketing and communicating, as well as an invaluable resource for finding out more about job applicants and existing employees in order to conduct reviews and enhance performance evaluations.

Knowing how social media activity can and cannot be used to learn about current and potential employees has become absolutely essential for HR practitioners and executive decision makers. Gaining intimate familiar with the legal considerations and best practices associated with responsible and effective social media vetting is a must.

Because the technology itself is new, the practice of social media vetting is still in its infancy. Consequently, despite some clear bright lines about what is and is not permitted, a lot of gray areas exist, presenting potentially tricky legal and ethical questions. Employers must be cognizant of these complexities and limit their exposure to legal and financial liabilities while still making use of social media as a rich source of information and insights into people and prospects.

Subjects and Scrutiny

One of the key issues that needs to be resolved before examining any social media content is who will be performing the examinations. The Fair Credit Reporting Act generally requires that written consent be obtained prior to third parties conducting background checks. Instead of outsourcing social media examinations to consultants, and to optimize consistency and accountability, the best and safest approach for an employer is to designate a single individual within the organization to look at the social media accounts of employees and job applicants.

Ideally, the designated person will be a qualified HR professional. A further consideration is that choosing different individuals to review social media accounts can result in accusations of inconsistent, improper or discriminatory conduct. The best way to ensure the same same procedures are followed each time and the same criteria are applied, as well as the best wat to protect the organization, is to have a written social media review policy. Having that documentation formalizes and reinforces guidelines while providing some protection in the event that a complaint is submitted to a regulatory entity such as the U.S. Equal Employment Opportunity Commission.

Respect and Red Flags

As a rule, questions presented to prospective employees about their social media activity and accounts should remain general and nonspecific. Employers should avoid sensitive topics and remember that asking for an applicant’s or employee’s social media account passwords is a violation of the federal Stored Communications Act.

When conducting a social media review, it is important to be alert for common red flags such as obvious indications of dangerous or illegal activity but also to look for subtle signs of concern such as offensive or defamatory language. While there are universal red flags, every organization is different; what is deemed offensive or problematic to one employer may be unremarkable to another. An organization’s social media review policy should reflect core values and expectations. For example, a religious organization may have a policy with more-stringent moral, ethical or behavioral standards.

Privacy and Permissions

As a general rule, employers can examine social media accounts that are accessible to the general public. Starting out by checking popular platforms like Facebook, Twitter and Instagram facilitates covering the most virtual ground in an efficient manner. It is important to note, too, that guidelines constrain the manner and extent of the reviews an employer can conduct for applicants and existing employees. The Electronic Communications Privacy Act states that all employee activity on company-owned machines is fair game. Rules regarding what employees post to social media while using devices they personally own are more restrictive.

Say When

Another important issue to consider is when to conduct social media reviews. Because performing a review prior to an interview has the potential to unfairly bias the ways questions are asked and how responses are interpreted—as well as to expose the organization to accusations of conducting a prejudiced or discriminatory hiring process—any applicant review should be performed after the initial interview.

If a review does raise concerns, the employer should follow up with the prospective employee to ensure that he or she has an opportunity to share any ameliorative context or mitigating information. Because the timing of reviews and the manner in which they are conducted and reported can have significant legal and financial implications for organizations and subjects alike, it makes sense to consult with an experienced labor and employment law attorney when any questions arise.

Standards and Practices

While creating and following a consistent process that includes clear guidelines about what is and is not permitted are essential for conducting responsible social media reviews, flexibility and good judgement should be encouraged. Isolated comments on social media should not be taken out of context or given too much weight if they do not match up with the rest of a person’s online activity.

Mistakes happen, and it is all too easy to draw definitive conclusions from unclear or incomplete information. There are plenty of cases where problematic content has a perfectly innocent explanation, including cases of mistaken identity, accounts being used by more than one individual and even hacking. The bottom line is that it is important not to leap to conclusions. To protect itself from charges of unfair treatment and improper hiring, an employer should reach out to employees or prospective employees for clarification or context while fully documenting due diligence along the way.

Social media content is an increasingly ubiquitous part of our personal and professional lives. This makes it incumbent upon employers to be proactive about increasing social media literacy among executives, HR staff and hiring managers, making sure that their ability to conduct reviews of employees’ and job applicants’ public online activities keeps pace with rapidly changing platforms and practices.

An employer’s ability to review and monitor social media activity should be constrained by its responsibility to do those things in a thoughtful, consistent and professional manner. And as lines blur between personal and professional spheres, and as more of our daily lives are lived in the evolving online landscape, organizations will find that practicing responsive and responsible social media reviews is an increasingly critical piece of the recruiting, hiring and employee retention puzzle.

Read the original article in HR News.