Social Media Searches are so Important that the Government is Doing it and So Should You

 

The U.S. Department of Homeland Security (DHS) recently announced that, as of October 18, 2017, it will expand the background checks it conducts on immigrants to cover social media and internet search results. This policy includes green card holders and naturalized citizens, with the information collected becoming part of their immigration file. The impact to employers is that this policy may decrease the number of qualified candidates to fill open positions.

According to the Federal Register, the new administration rule will include the collection of “social media handles, aliases, associated identifiable information, and search results.”

Coincidentally, social media screening for employment purposes is at an all-time high. Information from social media sources can assist employers in making valuable decisions by providing a better picture of a candidate as a potential employee. However, while these new and evolving sources of information have positive elements, they have also created potential legal exposure for employers.

It is important to note that, unlike the new government policy, employers should not require applicants or employees to provide them with their username and password to access their social media accounts. According to the National Conference of State Legislatures, 25 states have enacted laws that apply to employers, and in 2016, the Uniform Law Commission adopted the Employee and Student Online Privacy and Protection Act.

The legal risk in conducting social media searches for employment purposes can be minimized by outsourcing social media research and reporting to a professional background screening firm. This creates a wall between the applicant and employer, and the screening firm can:

  • Help the employer integrate social media information into their applicant and employee screening program so that it’s consistent with their people risk strategy.
  • Redact protected class information that is irrelevant and potentially creates legal exposure for the employer.
  • Report only information the employer deems relevant.

Employers that conduct social media searches as part of their hiring process should:

  • Consult legal counsel regarding the use of each social media site.
  • Always comply with FCRA and EEOC regulations.
  • Make hiring decisions using only information relevant to the offer of employment.

The rules for social media background screening for employment purposes are evolving and future legislation and case law will help guide the conduct and use of this research. Using social media searches should be just one part of your overall background screening process, along with criminal screenings, verification checks, etc.

In our continuing effort to keep our clients out of harm’s way, Cisive has created an informative White Paper on social media searches best practices, Compliance Considerations in Social Media Employment Background Screening. Click here to download.

 

Complimentary Webinar: Compliance Best Practices in Social Media Employment Screening

 

Join Cisive and Fama for a unique perspective on the use of social media screening to enrich your organization’s hiring standards and code of ethics.

Register Now

 

When: Thursday, September 28 @ 1:00 pm EDT

Learn how your organization can extend the scope of its “people risk” strategy to include the analysis of social media and online identity.

  • How to integrate social media into your screening process – including how to balance social medial alongside criminal background checks.
  • Strategies for aligning social media screening around existing risk management strategies – hate speech, violence and terrorism. Learn how companies have begun taking a stand and defining acceptable behavior.
  • Social media screening best practices to ensure FCRA and EEOC compliance.

Can’t attend? Register anyway and we’ll send you a recording to view at your convenience. We hope you can join us.

Is Your Company’s Social Media Policy Outdated? Chipotle’s Failed Social Media Policy

Chipotle Grill logoA Chipotle employee was caught posting several complaints on social media about the company’s wages and snow day policy.  When the company’s national social media strategist discovered the tweets, the employee was quickly reminded that he was forbidden to disclose confidential information about the company according to the social media policy in Chipotle’s Employee Handbook.  He was told to take down the offending posts, which he did.  Two weeks later he was distributing a petition on employee breaks and was fired for insubordination for raising his voice at his manager. The employee subsequently sued under the NLRA.

Apparently, Chipotle’s social media policy was outdated and did not comply with the current National Relations Board (NLRB) rulings.  An NLRB administrative law judge (ALJ) ordered Chipotle to rehire the employee because his postings were protected “concerted activity” that were covered under Section 7 of the NLRA. The ALJ held that although the policies in question didn’t prevent Section 7 activity explicitly, they could be reasonably construed by employees as doing so.

The ALJ also tore into Chipotle’s social media rule that prohibited employees from damaging the company by spreading “confidential” information on social media, saying that “confidential” was not well-defined.

“The board wants [employers] to be specific so an employee doesn’t think you’re telling them: ‘you can’t talk about what you earn and the terms and conditions of employment,’” says Howard Wexler, an associate at Seyfarth Shaw. He recommends giving employees specific examples of what is and is not considered confidential to further clarify and help the policy withstand board scrutiny.

It was ruled that the employee should not have been asked to delete his critical tweets and should not have been threatened with discipline for circulating a petition about employee breaks.

The ruling, which Chipotle has the option of appealing, shows how tricky it can be to exercise oversight of an employee in a time when the NLRB is eager to protect workers’ social media speech.  Employers can still monitor employees bad-mouthing them on social media, but “The board continues to define and interpret ‘concerted activity’ very broadly,” says Herrick Sovany, attorney and founder at Sovany Law. “As long as the employee speaks to general terms and not directly with regard to himself or herself, it’ll be protected more likely than not.”

If your company has an outdated social media policy, it’s time to ensure it is updated.  While you are at it, make sure that if you are using social media searches in your hiring process they are being done right.

 

 

 

List of 18 States that Ban Employers From Requesting Access to Social Media Posts

social media iconsPeople love to share information about themselves on social media and employers haven taken notice.  According to 2013 research by the Society for Human Resource Management (SHRM), 20 percent of employers use social media to screen applicants (Facebook, Twitter, LinkedIn or Google Plus). However, 74 percent of employers said they were concerned with legal risks such as discovering protected characteristics like age or religious affiliation. Sixty-three percent said the information on social media sites may not be a good predictor of performance or potential, and 61 percent didn’t think the information was relevant to whether or not the applicant would blend in well with the organization.

 

 

States are leading the charge to safeguard individual privacy rights and New Hampshire has become the 18th state to do so.  Below is the complete list of 18 states that ban social media searches for employment purposes:

 

STATE

EFFECTIVE DATE

Arkansas 4/23/13
California 9/27/12
Colorado 5/1/13
Illinois 8/1/12
Louisiana 5/22/14
Maryland 10/1/12
Michigan 12/28/12
Nevada 10/1/13
New   Hampshire 8/1/14
New   Jersey 3/21/13
New   Mexico 4/5/13
Oklahoma 11/1/14
Oregon 5/22/13
Rhode   Island 7/1/14
Tennessee 1/1/14
Utah 3/26/13
Washington 5/22/13
Wisconsin 4/8/14

 

What does this mean for employers? First, it’s not a best practice to be asking for this type of personal information from employees and applicants or reading their social media postings.

In some states, forcing someone to reveal social media postings is a punishable offense with fines in the range of $500 to $1,000.  Some states allow civil actions to be brought against employers by employees and applicants.

 

Therefore, employers should ensure that their social media policies follow best practices and are clear and in compliance with the law.

Survey Results on How Organizations Use Social Media in the Hiring Process

social-media-icons-previewThe fact is social media is here to stay!  Today, the U.S. workforce consists of 36% of millennials (30 years of age and younger) and they will account for 75% of the global workplace by 2025 (according to the Bureau of Labor Statistics).  This group has grown up actively communicating via social media.  Therefore, use of social media is, and will continue to be, a workplace communication mainstay.

 

Organizations currently use social media for public relations, branding, marketing, internal and external communications, recruiting, organization learning and, more recently, for screening potential job applicants.

 

The subject is so prevalent for organizations, that social media engagement was the subject of a SHRM 2013 survey.  I think you will find the results interesting.

 

  • 77% of organizations surveyed use social networking websites to recruit potential job candidates.
  • 20% of organizations surveyed use social networking websites, such as Facebook, for screening potential employees.
  • 57% of organizations surveyed have no formal or informal policies regarding use of social media for job screening.
  • 28% of those organizations plan to implement a formal policy in 2013.

 

Social media offers many benefits to organizations but there are currently no definitive best practice standards. The EEOC is currently getting involved.  But, to minimize risk until best practice standards are developed, organizations should remember that the same compliance, legal and ethical principles that apply to other employment practices should also apply to social media.