social media background checks policy development

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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

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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.

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Page 1: Social media background checks policy development

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

Page 2: Social media background checks policy development

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

Page 3: Social media background checks policy development

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

Page 4: Social media background checks policy development

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

Page 5: Social media background checks policy development

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

Page 6: Social media background checks policy development

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

Page 7: Social media background checks policy development

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

Page 8: Social media background checks policy development

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

Page 9: Social media background checks policy development

Authenticity

How do you know the site or tweet belongs to the applicant?

Page 10: Social media background checks policy development

So Sign Me up, Let’s Get Started…Well, Not So Fast…. Let’s Look at the Legal Implications

Page 11: Social media background checks policy development

Steve KoersLewis And Wilkins LLP

317-495-7100

[email protected]

Page 12: Social media background checks policy development

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

Page 13: Social media background checks policy development

3 Big Legal Implications Discrimination Privacy Authenticity

Page 14: Social media background checks policy development

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

Page 15: Social media background checks policy development

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.

Page 16: Social media background checks policy development

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

Page 17: Social media background checks policy development

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

Page 18: Social media background checks policy development

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?

Page 19: Social media background checks policy development

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

Page 20: Social media background checks policy development

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

Page 21: Social media background checks policy development

Employment Perspective Social Media Policy is NOT a

form of INSURANCE

You need to carefully consider your goals

What do you want to accomplish?

Page 22: Social media background checks policy development

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?

Page 23: Social media background checks policy development

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

Page 24: Social media background checks policy development

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!

Page 25: Social media background checks policy development

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

Page 26: Social media background checks policy development

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

Page 27: Social media background checks policy development

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

Page 28: Social media background checks policy development

Legal Considerations Recent Cases

NLRB Cisco

Businesses need to consider: FTC Trade Secrets Copyright and IP Privacy & HIPPA SEC Agency

Page 29: Social media background checks policy development

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

Page 30: Social media background checks policy development

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]

Page 31: Social media background checks policy development

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

Page 32: Social media background checks policy development

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

Page 33: Social media background checks policy development

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