social media background checks policy development
DESCRIPTION
Social Media has exploded in recent years and employers realize that social media background checks should be an important part of their hiring process. However, this can be a legal minefield. Join Safe Hiring Solutions CEO and attorney Steve Koers for a look at social media background checks policy development.TRANSCRIPT
Social Media Background Checks Policy Development
The Webinar will begin shortly. While you are waiting please answer the following question using Twitter: @SHSscreening
Are you conducting Social Media Background Checks? Why or Why Not?
Select speakers or Phone on Webinar tab
Inaugural SHS FREE Webinar Series
Provide Education- Foundation SHS was built upon Quick Updates:
New products/services- iRefCheck coming soon… New Partners- Accupay, AppliTrack, Keystone Group New Integrations- AppliTrack
Encourage Social Media to Connect & Network with our 3,000+ Users Twitter- customer service, network, information resource FaceBook- What we stand for- community work-missions Blog
Facilitators
Mike McCarty CEO SHS Metro Nashville PD Domestic Violence
Division Breaking the Cycle iRefCheck
Steve Koers, Esq. Lewis and Wilkins LLP Former Dep. Prosecutor
Practices in• Business Litigation• Employment Law• Church Law
Recap of Why We Are Here?
“The intersection of social media and the office is a potential minefield”
Philip Gordon
Chairmain
Privacy & Data-Protection Group
Littler Mendelson
Criminal Background Checks are Not Enough
Majority of Sex Offenders Undetected
Social Media has Exploded
Welcome to the Wild West 2.0 160+ Million Blogs 80K New Blogs Daily 75 Million Tweeters (200
Million Registered) 550 Million FB Users 67 Million MySpace Users 41 Million LinkedIn Users 490 Million YouTube
Users 92 Billion YouTube page
views per month
Benefits of Social Media Background Checks
Due Diligence Negligent Hiring Negligent Retention
1st Time We Can Look Inside Applicant’s Head Hobbies Interests
Unfiltered Character Check
Consumer Reporting Agency SHS is a Consumer Reporting
Agency under federal law: We assemble information on
consumers; For a fee
So You must operate under the
FCRA
ConcernsHow do you determine if
applicant has hidden online identity?
Separate worlds- separate identities
Social Media check might provide false sense of security against sophisticated applicants
Authenticity
How do you know the site or tweet belongs to the applicant?
So Sign Me up, Let’s Get Started…Well, Not So Fast…. Let’s Look at the Legal Implications
What are Some Pitfalls of Social Media Screening?
Too Much Information (TMI)
Photos of Applicant Age Race, etc
Blog posts or tweets related to say personal religious beliefs, ethnicity, etc
Learning & seeing so much that cannot be legal basis of hiring decision
3 Big Legal Implications Discrimination Privacy Authenticity
DiscriminationApplicants could bring a
failure to hire lawsuit if employer uses information from social networking site about:
Race Ethnicity Nationality Marital Status Religious Preference Age Etc
PrivacyPrivacy? On the Internet? Argument can be made
that consumers have a “reasonable expectation of privacy” on social networking sites where only “friends” are supposed to have access.
Do I Need a Social Media Policy? Unlike highly structured Background Checks with
credible sources Microsoft Survey:
90% of Employers claim they take steps to corroborate authenticity of Online information
But how do they corroborate? If Employee has a beer in a photo, does the Employer
track down others in photo to confirm general lifestyle? Just because it is possible, it doesn’t necessarily
result in better hires
Hiring Perspective Powerful tool Not Risk-free
Digital search leaves a discoverable trail
Creates documentation and tracking responsibilities
Mistaken identity, fake accounts, inaccurate info
Old rules still apply EEOC, Anti-discrimination
Hiring Perspective Questions to ask:
1. Do we have a legitimate business reason? What would we learn that we wouldn’t learn form application
and interview?
2. How far to check Would we go watch their house? Would we watch their friends’ houses? Would we listen to their conversations in a restaurant? Why would we do this on-line, then?
3. What about our own on-line information?
Hiring Perspective4. Would we be employable?
5. What is the message we are sending to our current and future Employees regarding privacy and trust?
6. What are our legal risks? State and local rules Possible rights vioaltions Need a system
Hiring Perspective If you do engage in Social Media Background
checks, you need policies that are: Global - Search everyone who applies Internally consistent
Search the same sites, all the time Follow up with only the same types of information Use same (independent) people to do the search
Legally defensible DO NOT “FRIEND” OR FOLLOW AN APPLICANT Run your policy through your attorney Educate and train managers about what they can and cannot do When searching, evaluating and deciding on candidates
Employment Perspective Social Media Policy is NOT a
form of INSURANCE
You need to carefully consider your goals
What do you want to accomplish?
Employment Perspective Temptation is to “Lockdown”
Block or forbid all social media and all comments
Is that the best business decision? Depends upon your business What do you want to accomplish?
Is it even Legal?
NLRB Issues Change in Board and Enforcement Recent Settlement
Employee criticized supervisor on Facebook
Employer fired Employee NLRB:
illegally denied union representation maintained and enforced an overly
broad blogging and internet posting policy
What Does That Mean? Employee posted comments, violating company Social
Media Policy Fellow Employees responded and engaged in
discussions To the NLRB, the responses and the “overly broad”
Policy constituted “concerted protected activity” It is not a “Free Speech” case, as much as it is “Protected
Speech” Employees have right to discuss the terms and conditions of
employment, regardless of whether workplace is unionized!
Suggestions for Social Media Do not simply copy a social media policy
Every business is different with different needs
No boilerplate – understand what you are trying to accomplish
Have your attorney write or at least review your policy
Policies and Guidelines Policies
Well-defined rules Can and can’t do Often linked to laws Apply to ALL
Even if no social media job responsibilities
Guidelines Looser expectations Guide behavior that
may not be easy to define or enforce
Guide those who interact with public via social media as part of job
Policies and Guidelines - Examples Policies
Identify Yourself as Employee
Don’t post confidential or copyright info
Don’t post anything: Defamatory Offensive Harrassing Violating laws or other
company policies
Guidelines Be responsible Be authentic Avoid on-line disputes Add Value to the
company Don’t disparage
competition
Legal Considerations Recent Cases
NLRB Cisco
Businesses need to consider: FTC Trade Secrets Copyright and IP Privacy & HIPPA SEC Agency
Always remember the Laws! Consult an attorney to review policy content:
Anti-discrimination Anti-harrasment Anti-defamation FLSA NLRA Whistleblower protections Non-solicitation and non-compete Negligent hiring and Negligent retention
Contact Information
Steve Koers, Esq. Lewis And Wilkins LLP Former Dep. Prosecutor
Practices in many areas, including:• Business Litigation• Employment Law• School and Church Law
LEWIS AND WILKINS LLP11206 Fall Creek RoadIndianapolis, IN 46256317.495.7100 – Office317.495.7103 – Fax317.513.0798 – [email protected]
So Where Does That Leave Us?Legitimate Background
Screening Firms will be hesitant to provide service:
Required under FCRA to provide accurate information
FCRA requires information to be verified
Similar names & no identifiers Imitating others- cyber
slamming
Key Takeaways: Catch-22- “danged if I do/ danged if I don’t” Will need to be done in-house
Outside of HR to filter information that should not be used I.T.? Who? FCRA will not apply
** BEST defense against legal action is a social media policy Can you blog- trade secrets, etc Talking about co-workers/ managers, etc Branding Protecting security Who owns email Use of social media on business time
Questions? Send questions to Twitter: @SHSscreening Sign up for blog: info.safehiringsolutions.com Upcoming Webinars:
Child Sex Offenders: How They Select, Seduce & Maintain Victims 6/23 2PM EST