Screening & SelectionTalent Acquisition

The Gathering Storm of Social Network Litigation

How your workforce might just tweet you straight into the courtroom.
 
 
By Tom McNichol
 
In today’s always connected world, what does it take to lose a job? How about: 140 characters or fewer?
 

Just ask Connor Riley, a 22-year-old graduate of the University of California at Berkeley. After completing her master’s degree in information management and systems, Riley was offered a job with Cisco, the San Jose-based networking and communications
technology giant. Riley was so tickled with the offer that she immediately went on Twitter and posted this message:
 

“Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”
 

A Cisco employee happened to see the post and responded with a message of his own:
 

“Who is the hiring manager? I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the Web.”
 

In a matter of hours, Connor Riley had tweeted herself out of a job, and provided the world with yet another reminder of social media’s power to disrupt as well as connect. Hardly a week goes by that a job applicant or employee doesn’t get in hot water for something he or she wrote on a social network. And every day, recruiters, hiring managers, and HR professionals are using information gleaned from social networks such as Facebook, MySpace, LinkedIn, and Twitter to identify and screen prospective job candidates—sometimes at their peril.
 

A survey of HR managers and recruitment professionals conducted by Microsoft in January 2010 found that 70 percent of HR professionals in the United States have rejected a job applicant based on what they discovered by searching online. And those are just the HR pros that admit to using the Internet and social networks as a screening tool.
 

“When I give talks, I ask, ‘Who here is using social networks for sourcing and screening?’ and a few people raise their hand,” says Jared Callahan, director of client relations at Employment Screening Resources (ESR), a San Francisco-based company that specializes in employee screening and background checks. “Then I say, ‘OK, those of you who didn’t raise their hand are just not going to admit that you do it.’ Because everybody’s doing it.”
 

Social networks offer both opportunities and dangers for employees, employers, and hiring managers. On the positive side, sites like LinkedIn and Facebook are transforming the way potential hires are identified, greatly expanding the pool of candidates and helping smaller companies compete with larger organizations for talent.
 

“For sourcing purposes, social media is one of the best recruiting tools that’s ever existed,” says Rob Pickell, vice president, customer solutions for HireRight, an Irvine, CA-based pre-employment screening and drug testing company. “It allows you to connect to a broad population of potential candidates, get relevant information to help identify potential fits with positions, and then follow up with them. It’s a tremendously better tool than having people send in resumes, which can take weeks or months. With social media, sourcing can be done in a matter of hours or days.”
 

But the same qualities that make social media such a valuable sourcing tool also make it a potentially dangerous one for vetting candidates. Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate on the basis of color, religion, sex, or national origin. Since then, other federal statutes have added age, disability, and pregnancy to these so-called “protected classes.” Many cities and states have their own anti-discrimination laws, which have added still more protected class categories such as sexual orientation, gender identity, and appearance. Hiring managers are not only forbidden to discriminate against a person in a protected class, they’re banned from asking any question that would place a potential hire in such a class.
 

Social media, of course, often identifies a person as a member of a protected class without any questions having to be asked. Peruse a job candidate’s Facebook page and you might discover that she’s African-American or pregnant, or marched in a Gay Pride Parade, or was recently hospitalized, or wears a burqa. Now that you’ve discovered that information, the problem rises: If sued, how do you prove that you ignored it?
 

“Once you find out something about a potential candidate through a social network, how do you unring the bell?” asks Callahan. “As an employer, you wouldn’t ask about things like sexual orientation or religious preference on a job application, but now all of a sudden you have knowledge of a person’s personal interests, which you may not want to have. The trouble is, it’s very hard to disprove that was a factor in your hiring decision. Even though your decision may have been based on the fact that the candidate wasn’t qualified, they can potentially say, ‘Now wait a second, I know that you visited my personal website,’ and they could file some sort of claim against you for discrimination.”
 

Even when the information gleaned from a social network doesn’t involve a protected class, employers find they have to proceed with caution. When HireVue, a Draper, UT-based company that sells a video-interviewing platform to corporate recruiters and HR professionals was interviewing a candidate for a sales job recently, they uncovered blog posts and tweets from the prospective hire that disparaged his former employer. Rather than simply dropping the candidate from consideration, HireVue pressed for more information during face-to-face interviews.
 

“Rather than just eliminate him from the running, we just started pushing in a bit more,” says HireVue CEO Mark Newman. “So we’d say, ‘What about this? Describe this to us.’ And what we discovered is that what we found online was really a reflection of the person. He was someone who would trash you over frankly nothing. And if they think their last four bosses were jerks, they’re probably going to think you are too.”
 

The legal landscape surrounding the use of social media as a screening tool is still murky. So far, little case law is on the books regarding employers’ use of social media. Two recent cases, however, already have placed limitations on employers using social media to peek into their workers’ private conversations.
 

Last year, a federal jury in Newark, NJ, found that a restaurant manager who secretly monitored his employees’ postings on MySpace violated state and federal laws that protect web communications (Pietrylo v. Hillstone Restaurant Group, 2:06-cv-5754). The suit was filed by two workers from the restaurant Houston’s who had started an invitation-only, password-protected MySpace group. The group quickly turned into a wild online free-for-all, with workers denouncing managers as “stupid corporate f****s” and “d*** suckers.” There was also a poll that posed the question, “If you had to drop acid with one person in Houston’s, who would it be?”
 

Managers were not invited to the online forum, but one manager convinced a worker to give him the password that let him access the forum. After the manager read the postings, two workers were fired. But the court ruled that the MySpace group was a place of seclusion designed to protect the plaintiffs’ private affairs and concerns, and thus, its content could not be used as a basis for dismissal. The two employees were awarded a total of $3,400 in back pay and $13,600 in punitive damages.
 

A second case could make it harder for employers to use information gathered from social networks as the basis for dismissing a worker. In November, the National Labor Relations Board accused an ambulance service, American Medical Response of Connecticut, of illegally firing an employee after the worker criticized her supervisor on her Facebook page. It marked the first case in which the NLRB had stepped in to argue that workers’ criticisms on a social network site are a protected activity and that employers would be violating federal law by punishing workers for making such statements online.
 

The NLRB filed the complaint even though the ambulance company had an explicit policy that barred employees from depicting the company “in any way” on Facebook or other social media sites.
 

The NLRB has taken the position that employees talking jointly about working conditions—whether at the water cooler or on a social network site—are protected under the National Labor Relations Act, and that the company’s Facebook rule is too broad. An administrative law judge is scheduled to begin hearing the case in late January.
Both the New Jersey restaurant case and the NLRB complaint involved workers who were already employees of the company in question. It’s still unclear how courts will rule about using social media to investigate job candidates who aren’t employees.
 

“Everyone is really watching how this will play out relative to screening,” says HireRight’s Pickell. “Right now, people are very much taking a wait-and-see approach. No one wants to be the first mover or have case law developed based on what their company did.”
In the absence of clear guidance from the courts, legal experts advise hiring managers to draw up formal policies that clearly delineate how and when social media can be used as a screening tool. Ideally, these policies should mandate that the person doing the hiring be one step removed from the information gathered via social media.
 

“What we tell our clients is that if you think you want to use social media or the Internet as a hiring tool, then you should designate someone in your organization to be, in essence, the screener,” says Nancy Schess, a labor and employment law attorney and partner at Klein Zelman Rothermel in New York. “You say to this person, ‘Here’s what I want to know about this potential hire and this is what you’re not permitted to tell me.’ So, for instance, you could have someone use social media to verify education and experience and make sure that info doesn’t conflict with what was told in the interview. But don’t tell me anything about age, race, sexual orientation, religion, or national origin. So that way, you’ve used the social media tools, but you’ve minimized the risk.”
 

In fact, there are now several companies that will act as third party social media screeners for recruiters and hiring managers, with names like Social Intelligence Corp,
InfoCheckUSA, and Reppify. Some companies not only vet a potential hire’s social media postings, but also will monitor a workers’ social media presence once he’s hired.
Many companies are grappling with how to control their employees’ use of social media without stepping on workers’ First Amendment rights or missing out on the advantages of having a plugged-in, socially connected workforce.
 

“There are still a lot of firms trying to ban social media use at work,” says Leslie White, president of Croydon Consulting, a risk management consulting firm. “For a lot of managers, there’s still a perception that social media is a big time-waster. But if your goal is to engage with your customers or members, then I don’t think it’s a waste of time. If social media is where your customers are, then you can’t ignore it.”
 

The website Social Media Governance (http://socialmediagovernance.com/
policies.php) features a database of 160 social media policies, drawn from organizations ranging from FedEx, Microsoft, and IBM to the U.S. Air Force. The best policies aim to strike a balance between using social media to connect and engage customers and avoiding new media’s potential for mischief and embarrassment (see sidebar: Social Media Policy: Best Practices).
 

In many ways, these are still Wild West days for social media. Some believe that over time, social media will settle into being just another electronic tool that employers need to manage intelligently, like email.
 

“I think as norms develop around social media, people will become very savvy and won’t do stupid things that will hinder them from employment,” says Pickell. “I also think where the poor behaviors do exist, they’re just going to go underground because it’s very easy to remove this type of information from the public domain. Companies aren’t going to be able to stop social media. But it’s going to take awhile to resolve itself.”
 

Until then, it’s blogger beware.  
 
 
Social Media Policy: Best Practices
Social media policies are as varied as the companies that create them. A technology company, for instance, is likely to have a much more open social media policy than, say, the Department of Defense. But, in general, all good social media policies have these recommendations in common:
 
 
Bring something to the discussion. Social media is an outstanding way to connect with customers and clients and spread the word about a company. But it’s important that you bring something positive to the online discussion. Write about what you know, be transparent about who you are, and speak in an authentic voice.
 
 
Be explicit that your views are your own. If your online discussion mentions the company in any fashion, make it known up front that the views expressed are your own and do not represent the views of the company, unless you are authorized to speak for the organization. Be aware that giving your company email address can identify your employer even if you do not explicitly do so.
 
 
Talk as you would to a customer. Despite disclaimers, what you write online can result in members of the public forming opinions about your company, its employees, and products. Assume that your online discussion is being read by a customer or potential customer and post accordingly.
 
 
Don’t give away secrets. Be careful not to divulge any information that could be used by a competitor such as upcoming product releases, sales figures, legal information, information about customers, or company strategy. Employees who share confidential or proprietary information risk losing their job and possibly ending up as a defendant in a civil lawsuit. 
 
 
Take responsibility for what you write. Be aware that you are legally liable for anything you write online. Employees can be disciplined for content or images that are defamatory, pornographic, harassing, libelous, or that create a hostile work environment.
 
 
Give credit where it’s due. Respect copyright and fair use. If you are using someone else’s content, make sure you credit them and that they approve of its use.
 
 
Be productive. Don’t let your social media use distract you from your other work. Use social media to engage customers and members of the public in intelligent conversation, but don’t let it interfere with your other duties.
 
 
Remember: The Internet is forever. Once information is published online, it is part of a permanent record, even if you try to delete it after the fact. Don’t write anything you wouldn’t want to see attached to your name forever.
 

Tags: Screening & Selection, Talent Acquisition

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