Ethics of Social Media Searching During Recruiting

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by Kate Bischoff, Employment Attorney & HR Consultant, tHRive Law & Consulting LLC

These days, employers have oodles of information at their fingertips. However, when it comes to hiring, some employers are still reluctant to dive headfirst into the sea of information that includes social media searching during recruiting. I’m here to tell you, the water is calm, deep, and welcoming. In fact, pretty soon, not diving in could become a problem for organizations looking to hire the best talent.

As employers, we know that someone with a violent past should not work with children or vulnerable adults. We know that an accountant candidate should not have a prior grand-larceny conviction. This is why we conduct background checks: to prevent potential harm to our customers or organizations.

For some employers, though — even those who routinely administer background checks — social media searching during recruiting seems rather taboo. But in my opinion, you should gather as much information about potential candidates as you can. It’s publicly available information, and it’s perhaps the easiest way to combat hiring regret.

Consider this hypothetical situation: You are hiring a Customer Experience Manager. You’ve got several great candidates with excellent resumes, but you haven’t conducted any Web searches because you’ve heard looking at social media profiles could get you into legal trouble.

Soon, the hiring manager makes a decision, and you bring on Sebastian.

Sebastian’s first few weeks are great, but by the end of the first month, his work ethic is rapidly deteriorating and he’s spewing negativity everywhere he goes. Suddenly, your Social Media team discovers tweets he’s published that decry the organization and complain about general ineptitude in management and customer care. Backdating his profile, it becomes obvious that he took this same socially aggressive stance at his previous employer, appearing unable to control his negativity after a difficult day at work.

What do you do?

There are many different paths you can take. You may be able to let Sebastian go, but his activity could be protected under the National Labor Relations Act steering you right into an NLRB charge.  You could keep him and ask that he delete his posts, but again, you could run head-first into an NLRB charge.  You could ask him why he feels this way, address his poor work ethic through a performance improvement plan, and counsel him on your social media policy.  But you could have likely prevented this issue in the first place by quickly glancing at his social media activity, which would have revealed his 140-character tirades with a previous employer, before preparing the offer letter.

Using a simple search engine will usually provide all you need for social media searching during recruiting. Only the public versions of those profiles are available, but you can usually learn more about each candidate based on the information they choose to share. If you’re already using Facebook, Twitter, and LinkedIn to source candidates, you can also use these to research candidates. And you can do it while mitigating any legal liabilities.

Here are the steps to do this safely:

1. Decide what will disqualify candidates in advance. A small typo in the cover letter may not disqualify a potential engineer, but it probably will disqualify a copyeditor applicant. It’s the same with conducting social media-based “background checks,” but it’s important to agree to disqualifying terms ahead of time.
2. Have HR search. The main concern about reviewing social media is the potential to gather protected-class information. HR is more likely to know and work against bias than a hiring manager who has only heard the phrase but has not been aptly trained. Also, HR probably isn’t a decision maker—they simply report the information. (Quick reminder, if you have a third party do your social media searches, the Fair Credit Reporting Act applies, so tread carefully.)
3. Wait. Do not search the profiles of every candidate. That’s way too time consuming. Wait until you’re down to your top five, three, or two candidates.
4. Ask the candidate. I know this one is difficult, but social media is rife with mistaken identity, unknown trolls, and more. Even if you find objectionable content, give the candidate an opportunity to explain it. This provides a sense of fairness to the candidate and gives them an understanding of why you may decide to move in another direction.

Today’s social discourse is full of sensitive and objectionable opinions and activities. Wouldn’t you rather know about these issues beforehand? I certainly would.