Using Social Media in Hiring: Necessary? Legal? Ethical?

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Social media is no longer just a convenient means of communicating, or something that people use for entertainment purposes. Social media now pervades our society. It is likely that you check your social media accounts first thing when you wake up in the morning and the last thing before you go to sleep at night. How has this happened?

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On a typical day, Google searches top 63,000 per second.

That’s nearly four million searches per minute! The most frequent Google search is for the keyword “Facebook,” the darling of social media, with over two billion searches per month. This might seem impossible, until you consider that there are currently more devices capable of connecting to the Internet (close to 24 billion) than there are people alive on our planet (7.69 billion).

Facebook has over two billion active users. There are more than five new Facebook profiles created every second. Balance that with the fact that more than 80 million of the existing Facebook profiles are fakes. More than four new petabytes (that’s a million gigabytes) of data are generated on Facebook every single day. What does this mean for the hiring process?

Facebook is an incredibly huge, ever-expanding, source of data. When coupled with other social media, such as LinkedIn, Instagram, and Twitter, a huge portion of the world population uses social media to some extent. So, why wouldn’t it be one of the best sources of data for recruiters and HR personnel to use to supplement the typical resume submitted by a job candidate?

There are two ways that social media is being used in support of the hiring process. The first, and most typical, use is in the sourcing of candidates for open positions. Social media can be a potent supplement to advertising on job boards or through agencies. The second way social media is being using in the hiring process is in the vetting of potential candidates who have submitted resumes or applications for open positions.

How Social Media is Being Used in Recruiting Efforts

This trend of using social media relative to job searches goes both ways. Nearly 60% of job seekers are using social media to check out their prospective employers long before they submit their resume or job application. Not only are they researching the jobs being offered, but they are also using a company’s social media pages to evaluate the corporate culture to determine if it feels like a good fit.

Close to 70% of job seekers report being more inclined to apply for jobs at companies that have a social media presence, especially if their social media presence clearly reflects values that help them develop trust in the company.

Over 85% of recruiters are now using LinkedIn to advertise open positions. While LinkedIn has established a reputation as a source of viable candidates, LinkedIn’s 500 million users don’t even come close to the potential pool of highly-qualified job seekers resident in Facebook’s two billion users. Furthermore, this over-reliance on LinkedIn has created increased competition for LinkedIn’s most highly qualified candidates.

On the other hand, only about 55% of recruiters are posting jobs on Facebook, even though over 80% of job seekers report they are active on Facebook, whereas only 36% report being active on LinkedIn.

It is clear that recruiters need to take a more integrated approach to their use of social media, using multiple social media channels to advertise open positions. If recruiting videos are added to job posts, nearly 40% more applications are received. This multi-pronged approach results in a heightened ability to hire the best and the brightest.

Using Social Media for Background Checks

Here is where the use of social media in the pre employment process gets controversial. With all of the other means of checking into a potential employee’s background, is it really necessary to check out their presence on social media? Strictly speaking, no. You have other means of validating and cross-checking the data and information entered on resumes.

61% of employers used social media to find information that would support a candidate’s qualifications for the job

50% were looking to see if the candidate’s social media accounts reflected a professional persona
37% wanted to know what other people were posting in relation to the candidate
24% looked at social media to see if there any valid reasons for not hiring the candidates

If you are trying to evaluate the character of a job candidate to pick out red flags, it is extremely difficult to ignore the treasure trove of personal data that is captured in social media. By gaining a better understanding of the character of the person portrayed on their resume, you can get a better feel for whether or not a candidate fits into your corporate culture. You also can avoid making a potentially costly hiring mistake.

There are some legal and ethical hurdles that you need to be aware of in accessing and using social media to evaluate candidates. It is critically important, from a legal standpoint, that you don’t unconsciously create bias in your mind when reviewing the social media accounts of a candidate, especially in regard to legally-protected classes.

So, let’s take a look at each of these areas so you can get a full perspective on the use of social media to perform background screenings and evaluate candidates, which will enable you to make the best decision for your company.

Is Social Media Candidate Evaluation Necessary?

It really is a case of balancing the benefits against the risks. It also depends on what you are looking for when you search a candidate’s social media accounts. If you are using your search to validate resume info by matching it to what the candidate posted on social media, this is a valid and common use of social media.

A 2017 survey of HR professionals, conducted by Harris Poll at the request of CareerBuilder, revealed that 70% of employers are now using social media to vet candidates prior to hiring, which is up drastically from the 11% that used social media this way in 2006.

It was revealed that:

39% found that a candidate had posted provocative or inappropriate pictures, videos or information
38% found that a candidate had posted information about themselves drinking or using drugs
32% found that a candidate had posted discriminatory comments regarding race, gender or religion
30% found that a candidate had posted derogatory comments about previous company/co-workers
27% found that a candidate lied about their qualifications
27% found that a candidate had poor communication skills
26% found that a candidate was linked to some type of criminal behavior
23%  found that a candidate shared confidential information from previous jobs
22% found that a candidate had an unprofessional screen name
17% found that a candidate lied about an absence from work
17% found that a candidate postted too frequently

While some of these behaviors are far more egregious than others, you can easily see that there can be information lurking in a candidate’s social media accounts that warrants a decision to keep them off your company roster. While you may have started your search of social media looking for information that would support a hiring decision, it would seem very short-sighted to ignore information that could result in hiring a candidate that would later prove detrimental to your company or its reputation.

Conversely, having their social media accounts searched has been beneficial to many candidates.

The survey showed that:

33% were impressed with the professional image the candidate displayed on social media

37% of HR managers conducting social media searches found positive information that supported the candidate’s qualifications

34% were positively impressed by the creativity expressed by candidates

Is Social Media Candidate Evaluation Legal?

This is the area where you can expose yourself to allegations of discrimination, or maybe even incur a lawsuit, if you aren’t very careful about how you conduct employment background checks on your candidates by using their social media accounts. The problem behind the potential illegality is the introduction of bias, either consciously or unconsciously.

According to Title VII of the Civil Rights Act of 1964, employment decisions cannot be based on certain protected characteristics, including race, color, national origin, religion, gender (including pregnancy), disability and age (if candidate is at least 40 years old). If you are reviewing a candidate’s social media and there are pictures, or other information, that reveal that they are entitled to any of these protections, you cannot consider that information.

While most organizations are using social media to conduct background checks, of those that do not conduct such screenings, 74% said that it was due to the fear of the legal ramifications of accidentally discovering protected information about a candidate.

Even if you decide not to use social media screening, the perception can exist that you saw protected information and used it in a hiring decision. If you manage to avoid violating civil rights laws, you still need to be mindful of the candidate’s privacy rights, the potential of basing an adverse decision on defamatory posts by third parties, and the whole concept of trying to gather job-related information from a social media site that was never intended for that specific purpose.

Another thing to consider is that not everyone has access to, or uses, social media. This may result in unintentional discrimination against certain ethnic or racial groups.

57% of prospective employers were less likely to call a candidate for an interview if they couldn’t find an online presence for them.

Around 30% of American adults do not have an online presence, which could affect their ability to find gainful employment, especially in more high-skilled professions.

Is Social Media Candidate Evaluation Ethical?

This may be the hardest question to answer. There are no laws to rely upon to determine right or wrong. Even if you have decided that it is in the best interests of your company to proceed with social media background checks, and even if you are very careful to avoid even the mere appearance of violating Title VII protections, you still have to decide whether or not peering into the online lives of candidates, using social intelligence is the right thing to do.

If your recruiting and hiring managers have been trained on how to avoid the protected-class pitfalls, and if they confine their searches to job-related information, ignoring posts and pictures that were uploaded for the sole enjoyment of family and friends, then, and only then can such an invasion of personal privacy be condoned.

If you recall the results of the Harris Poll, described above, many of the reasons that managers gave for deciding not to hire a candidate after reviewing their social media had absolutely nothing to do with job-related qualifications or work performance. If you truly are evaluating a candidate’s suitability for a job, is it ethical to base your evaluation on criteria that fall outside the parameters of the job?

Also, with social media not being entirely secure from hacking attacks or even concerted smear campaigns mounted by disgruntled former friends, coupled with the inability to determine, accurately, the context of photos and information that gets posted to an individual’s social media accounts, the accuracy and reliability of social media information is suspect.

Additionally, each reviewer is going to bring their own personal bias to any such review. Is that picture of your candidate holding a glass of wine a moderate toast in celebration of a dear friend’s birthday, or is it evidence of profligate alcoholism? Without knowing the exact context, you have to rely on your reviewer’s ethics, and their ability to recognize and set aside their personal bias, in evaluating that particular social media content.

The Society for Human Resource Management (SHRM) has a Code of Ethics that charges all HR professionals with the responsibility for handling HR information in a manner that will “consider and protect the rights of individuals, especially in the acquisition and dissemination of information while ensuring truthful communications and facilitating informed decision-making.”

Can the data gleaned from social media meet this standard? Is anything we read or view on a candidate’s social media even true? How can we judge this? How deeply was something derogatory in nature buried in a candidate’s social media? Did we discover it incidentally, or did we have to witch-hunt through years of posts to find it? How can we best use this information to make fair hiring decisions?

How to Mitigate Your Risk

How many times in your life have you heard the phrase, “Timing is everything”? It also applies to the use of social media background checks for your job candidates. In fact, it can be one of the strongest techniques to mitigate your risk of allegations of discriminatory hiring practices. Even before you perform a social media background check, following these steps will ensure you get all the information you need to thoroughly evaluate potential candidates, without getting into legal difficulties:

Develop, standardize and document your screening process, so that it is very clear exactly how hiring decisions in your organization are based, strictly and objectively, on the criteria listed in the position description.

At a minimum, have a trained HR professional, not the hiring manager, perform the social media background check, extracting and forwarding only information that relates specifically to the job description criteria to the hiring manager. If you can afford it, hire a third party to conduct the social media background check and provide the hiring manager with only job-related information. Be aware that using a third party to conduct social media background checks makes you subject to the requirements of the Fair Credit Reporting Act, and any other similar laws in your State.

Perform the social media background check only after you have made a conditional or contingent job offer. Get the applicant’s consent for the social media check, and make sure that they understand that your offer is entirely contingent upon them passing the background check. By waiting until after the interview has been conducted, a lot of the protected-class concerns go away, as membership in protected classes will have become apparent during the interview. Be sure you conduct the same exact social media background check at the same point in the hiring process for every candidate.

As with other elements of candidate evaluation, consistency is the key. Social media background checks should be no exception. You must make certain that all candidates have the same types of social media accounts, to ensure that they are all being held to the same standards and evaluated using the same criteria. In order to comply with EEOC guidelines, any tool (such as social media) that is used for hiring decisions must provide consistent, reliable information. Social media may not provide this for all candidates, and should not be used if it cannot be applied consistently and fairly. This is one of the surest ways to violate protected classes and decrease the accuracy of your selection, unless you conduct the social media check after you have made a tentative selection.

Be absolutely certain that all information collected from social media on your candidates is strictly job-related. Social media is overtly personal in nature. It is highly likely that you will find information that reveals protected-class information about your candidates. It is absolutely illegal to consider this information in making your hiring decision. It should not be included in any pre-hiring files that are put together for the hiring manager to use in making a selection. This is yet another reason to wait until after you have made a tentative hiring decision to conduct your review of a candidate’s social media accounts.‌‌

Keep meticulous records of any social media data that you have considered, even tangentially, in making a hiring decision. If you are called into court, you will be required to prove, unequivocally, that no protected class information was used in your hiring decision. Keep screen prints, together with documentation of specific reasons why you rejected a candidate. This can be especially helpful if a candidate deletes damaging content from their social media account.

The Bottom Line on Using Social Media for Background Checks

There will always be risks associated with using social media to perform background checks on your job candidates. With some prudent planning, clear delineation of your hiring process and conducting the social media background check toward the end of the hiring process, you can mitigate most of these risks, even if you can’t avoid them altogether.

Social media provides a huge amount of data that can save HR managers from making bad hiring decisions, but this information must be gathered and used with the understanding that it is not always possible to ascertain its accuracy and context. If you do find information on social media that casts your candidate in a bad light, treat it just like you would if you discovered it through any other means, such as on their resume or in their interview.

The best way to manage your risk is to use a third-party screening company that can weed out fake accounts and provide you with job-related information gleaned from candidate social media accounts without inadvertently exposing you to protected-class data.

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