More employers are turning to social media sites to vet
potential employees. There is no doubt that sites like Facebook and Twitter
offer a wealth of information about potential hires. Using these sites to vet
job candidates offers a great opportunity, and also a huge risk. Using publicly
available information on the Internet has the risk of disclosing protected EEO
information, such as disability, age, race, or religion, or, at a minimum,
raising a dangerous inference that such information was discovered and used in
the hiring process.
Nearly two years ago, I cautioned employers against relying solely on online
background checks to vet potential employees. I recommended using a
"third-party to do the searching, with instructions that any sensitive,
protected, or EEO information not be disclosed back to you." No companies were
available, though, that specialized in these types of background searches,
until now.
Last month, the FTC signed-off on a year-old company that searches social
media sites for employers conducting background searches on employees-Social Intelligence
Corp. In last Wednesday's New York Times, Jennifer Preston
wrote a profile of the start-up that has generated a lot of online discussion:
Companies have long used criminal background checks,
credit reports and even searches on Google and LinkedIn to probe the previous
lives of prospective employees. Now, some companies are requiring job
candidates to also pass a social media background check.
A year-old start-up, Social Intelligence, scrapes the
Internet for everything prospective employees may have said or done online in
the past seven years.
Then it assembles a dossier with examples of professional
honors and charitable work, along with negative information that meets specific
criteria: online evidence of racist remarks; references to drugs; sexually
explicit photos, text messages or videos; flagrant displays of weapons or bombs
and clearly identifiable violent activity.
According to Social Intelligence's CEO, Max Drucker, its
services "have turned up examples of people making anti-Semitic comments and
racist remarks.... Then there was the job applicant who belonged to a Facebook
group, 'This Is America. I Shouldn't Have to Press 1 for English.'"
I have not used Social Intelligence's services, and I am
not endorsing its product. What is appealing about it, though, is its professed
ability to screen out protected EEO information:
Our technology allows us to turn around reports in 24 to
48 hours while still having social media activity about every job applicant
manually reviewed. Social Intelligence Hiring presents employers with reports
on only employer-defined objectionable material, such as racist remarks or
behavior, explicit photos and video, and illegal activity. We flag job
candidates associated with negative and positive material, filtering out their
"protected class" information and reporting only relevant and desired data.
Summary and detail views present easy-to-understand results, with screenshots
of pertinent material.
Social Intelligence has sparked a lively debate on the
Internet. The New York Times story alone has a whopping 258 comments to date. I participated in a discussion on Google+ about the New York Times
article, where my opinion voicing the validity of checking employees' social
media activities was decidedly in the minority. The majority, who expressed
privacy concerns, misses the mark. Social media is inherently public, and
employees who do not tend to their online image risk an arduous job search.
If you want to learn more about the proper and improper
uses of social media in the hiring process, I recommend part two of Stephanie
Thomas's Proactive Employer Podcast-the HR and Social Media
Roundtable-airing live this Friday (July 29) at 8:30 am on BlogTalkRadio, and
later available for on-demand listening at The Proactive Employer
and via iTunes.
Visit the Ohio Employer's Law Blog for more
practical employment
law information.
Presented by Kohrman Jackson & Krantz,
with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a
partner in our Labor
& Employment group, at (216) 736-7226 or jth@kjk.com.