Published on May 22, 2014. TulsaBusiness.com (original article may be viewed here)
(TulsaBusiness.com) - With technology constantly growing to be a larger part of day-to-day life, business professionals have to adjust practices to keep up with changing times. An area largely affected by technology changes is recruiting. The 2014 OKHR conference hosted numerous speakers who touched on how social media and the digital age affects the industry, Courtney K. Warmington, JD, and Russ Knight were two such speakers.
Warmington, director of Labor & Employment practice group with Crowe & Dunlevy, spoke on the subject of social media checks when recruiting. She explained six traps often encountered when utilizing social media during the hiring process.
The six traps she considered most important were not following the Fair Credit Reporting Act, accessing information from social media accounts illegally, selective screening, forgetting about the National Labor Relations Act, taking into account protected information and negligent hiring claims from neglecting information found on social media.
Fair Credit Reporting Act
According to Warmington, many companies are unaware the Fair Credit Reporting Act applies to social media checks, and she says that's because it is very situational.
"The Fair Credit Reporting Act relates to any consumer report," said Warmington. "Of course a consumer report doesn't sound like something we would find on Facebook, but you've got to keep going down to the definition, it's all in the details. Consumer reports are defined as anything bearing on a person's credit worthiness, credit standing, credit capacity, character or general reputation. I don't know about you all, but I find a lot about a person's character or general reputation on social media."
Whether or not the check falls under the FCRA however, depends on who conducts it. According to Warmington, if the check is done by a third party, FCRA does apply, but if you do the check in-house, it does not.
Accessing Information Illegally
"I've been telling employers for years and years and years never to use someone else's username or account information to get into anything, including social media sites. Why? Because the Stored Communications Act has been around forever," Warmington said.
On the subject, Warmington added "shoulder surfing," accessing a social media account by looking over one's shoulder while they browse, is also illegal. Employers also cannot require applicants or employees to provide their usernames and passwords.
"Make sure you access the information properly," she said.
The third trap Warmington did not spend much time discussing. She said she had not yet seen any cases of this nature, but expects it is only a matter of time.
"Let's be thoughtful in advance of how social media checks are going to work," she said. "Give some thought to make sure we're doing it in a way that isn't going to somehow look discriminatory. ... Government agencies want to know you are doing things consistently."
Warmington informed attendees of OKHR14 that it's possible to determine at a later point what sites you looked at and for how long. To reduce the risk of selective screening, she recommended limiting social media checks to only one or two people.
Forgetting about the National Labor Relations Act
Trap number four related mainly to handling issues with current employees who are sharing information on social media. According to Warmington, the National Labor Relations Board protects employees sharing comments about their place of employment which include "profanity, unprofessionalism and downright rudeness," if the person is upset about terms or conditions of employment.
However, the fourth trap could also relate to the recruiting and hiring process as well.
"This comes out more with current employees, but also remember you cannot refuse to hire someone because they made pro-union comments," Warmington said.
She gave the example of checking someone's Facebook after an interview and seeing the following post, "Just had the best interview at ABC company. The pay isn't what I wanted, but no worries, I'll help form a union and soon we'll all be getting paid."
"The legal answer in this situation is you cannot refuse to hire someone based on the fact they were formerly in a union or because they've expressed interest in creating one at your work place," she said.
Taking into Account Other Information that is Protected
"We all know there are certain things we cannot take into account when we hire someone," Warrington said, showing a list of protected categories which included race, color, sex, national origin, religion, age, disability, leave, workers comp, genetic information and areas protected by off-duty conduct laws.
Negligent Hiring Claims
Upon reaching the final trap, Warmington said she expected by this time many professionals in the room would have dismissed social media at all.
"I've been involved with many employers who have found out really useful information [from social media] and were very glad they did. I'm not here to say you shouldn't do this, it's too risky - not at all," she said. "I think in fact you'll sometimes find out the most wonderful things about applicants, sometimes you'll find out the most terrible things about applicants and either way you'll be pleased that you knew. As long as you follow the rules I talked about today you can do that and it's not a problem"
While Warmington's other five traps involved improper use of information found on social media, her last trap was about not acting on the information found.
"If you do use information you've found on social media I want you to think through negligent hiring claims and negligent retention claims," she added. "If you do [use social media] and you find out something that is troubling, particularly something that is a safety issue, you do have to be careful about whether or not you know enough to risk hiring this person and subjecting your organization to harm and/or claims of negligent hiring. Those are hard calls to make. Don't think you can't refuse to hire someone if they're saying something that sounds threatening, that sounds harmful."
"The bottom line is seek and you shall find," Warmington said in conclusion. "Once you know it you can't unknow it. You just have to think through how am I going to use this information.
Knight, of Career Development Partners, took the social media talk in a different direction, focusing on using LinkedIn for recruiting purposes to share your company's brand.
"I want to project that I work for a great company," Knight said. "We've got a great culture, we've got a lot of good things going on and if we have an opening you would be crazy to not talk to me about that. LinkedIn is a great place to do that."
When approaching LinkedIn for recruiting, Knight recommends looking at it from the prospective of your ideal candidate.
"This person is not an idiot, how are they going to check me out?" Knight said. "They're going to go to my company's website, check. Every job candidate with half a brain is going to do that. Big deal. Next they're going to go to the company page on LinkedIn to see if they had connections - now we're getting somewhere. On the company page, they'll see we're posting all this stuff and they have a better sense of who we are, who we hire, who we have hired and the kinds of careers they've had because we develop our people. Think about it from their perspective. How is the good smart employee that I'm trying to attract checking me out and am I speaking to them here?"
Knight continued recommending recruiters be very intentional about what they are posting online. To drive the point home, he gave a number of examples of what he considered to be great company LinkedIn pages.
Knight pointed out that as a company in the oil and energy industry, Baker Hughes is looking for very specific types of employees. On their LinkedIn company page, Baker Hughes uses industry terminology and shares industry specific links; they even use very technical images for their cover photo.
"They are looking for people who speak their langauge," Knight said.
"They're one of my favorites because they do individual employee profiles on LinkedIn," said Knight. He further explained that WPX will share a profile of someone in their organization who has grown and advanced, showing the company promotes from within and develops their employees.
Oklahoma State University
Knight also pointed out there are a number of other entities who may need to brand differently on LinkedIn; one such case being that of universities.
"In education the message is different," he said. "For universities it might be showing where students have gone to work after graduating."
In any case, Knight stressed the importance of being intentional.
"I want to be intentional about the articles that I send or the links I share," he said. "That's the kind of things I want to think about - serving my audience, what would they benefit from."