Ten Recommendations for Safe Use of Social Media
The Internet provides extensive information about applicants, employees and employers, with such sources available as Google, Yahoo!, Facebook, MySpace, Twitter, etc. However, the potential exists for liability on the part of employers that use the Internet for employment decisions.
It’s not rocket science, said Joseph Beachboard, an attorney in the Los Angeles office of Ogletree Deakins. Employers have federal and state statutory restrictions to comply with, in addition to employees’ common law privacy rights.
According to Beachboard, whether or not employers use information discovered in this way ultimately comes down to a balance of interests. Some pros might include: invaluable information about character; failure to hire suits are much less likely than suits over termination; and avoiding negligent hiring claims. Alternatively, cons include: the Internet is pregnant with information impermissible to consider; taint an otherwise well-based decision; and an increased likelihood of litigation.
Once you’ve done the balancing test and decided whether information discovered online is something you’re going to seek, Beachboard suggests you keep the following 10 recommendations in mind.
1. Make an informed decision on use of Internet searches for applicants. Again, weigh the pros and cons, and make an effort to minimize the use of impermissible information, said Beachboard. In addition, make every effort to verify factual information before basing a decision on it.
2. Include a release/authorization in applications. This should include express authorization to visit sites as a proxy for the user, as well as an express understanding that the employee has no further privacy interest in any information posted on even password-protected or user-only sites, said Beachboard. This will require providing all applicable passwords and other information.
3. Don’t be cute. Do not try to access or break into any site that you have not been provided authorization to access, cautioned Beachboard. Similarly, do not falsify information or impersonate another individual in order to attempt to obtain access.
4. Retain necessary information. Because you are opening the door to impermissible information, it is important to retain all permissible information on which you are basing your decision, said Beachboard. Retain your search information so you cannot be accused of accessing information you did not.
5. Focus on job-relatedness of information. This is easier said than done, but it is of the utmost importance,said Beachboard, who provided the following tips:
- Have defined search criteria;
- Have a list of the type of information you are looking for;
- Have a list of the information you do not intend to look at or use;
- Give specific instructions to the searcher not to dig into inadmissible information;
- Be very careful about documenting the information that you did not and did not see;
- Do not retain information in your employee’s file that would be impermissible in the hiring process; and
- Be prepared to use this script later in litigation.
6. Ensure the right person is involved. Don’t task this responsibility to someone who is not qualified and doesn’t have the right information, said Beachboard. This should be done by an HR professional trained in these kinds of searches, whenever possible.
7. Evaluate use of third party to conduct searches. The decision of whether or not to use a third party to conduct these Internet searches will again require a balancing test, said Beachboard, who suggests balancing the pros and cons of doing so.
Beachboard listed the following as pros:
- Ability to limit what information is provided back to you;
- Ability to avoid learning about impermissible information; and
- Potential ability to simply receive a pass or fail decision.
He went on to list the following as potential cons:
- Lack of control over search;
- Inability to obtain some information you may want;
- Difficulty in defining what would be pass or fail; and
- Fair Credit Reporting Act obligations.
8. Consistently apply the search. Consistency, always important, is now even more critical, said Beachboard. You are accessing information you would otherwise never have obtained, so it’s of the utmost importance that you be consistent in your decision-making criteria and in your search criteria.
9. Check terms and conditions of website being accessed. Beachboard cautioned HR not to violate the terms of a site in order to access information. This is why it’s important to obtain appropriate information from your applicant, he said.
10. Increase support for job actions. Even though ‘everybody’s doing it,’ using social networking sites to check out applicants and employees carries a very negative connotation, said Beachboard. However, these searches can be used to support an applicant or employee just as easily. Consider having a first waived screening and culling out those obviously unqualified applicants.
Things are changing quickly, said Beachboard, but as long as employers and HR are careful, these search engines can be an invaluable tool.
Source: Google Me! (Unless I Don’t Like What You Find), presented by Joseph L. Beachboard, an attorney in the Los Angeles office of Ogletree Deakins, on June 29, 2009 at the Society for Human Resource Management 61st Annual Conference & Exposition in New Orleans, Louisiana.
Reprinted with permission. © CCH
<p>When employers use the Internet for making employment decisions, a liability potential exists. An employment attorney explains how HR and employers can proceed with care.</p>