Safe Use of Social Media Checks | DCR Workforce Blog

Safe Use of Social Media Checks

Courts are upholding at least some rights to employers to restrict their employees from degrading their organizations through unseemly acts online, if they were seen to tarnish the organization’s image. One such was the firing of a fire-woman for posting her pictures in her official uniform juxtaposed with others showing her in flagrant dishabille. The court ruled in the employer’s favor! Generally speaking, using the personal or professional information found on the Net about someone will yield a confusing melee of information, hardly influencing or enabling a hiring decision in a recruiter’s mind. Processing or filtering the available information to glean the relevant nuggets which can go to form the basis for a recruiting decision is a challenge which needs careful consideration as well as preparation. Then there are the legal and regulatory requirements to be factored in!

So, it you are planning to use online content on social media to determine a candidate’s eligibility, it is important to establish a clearly articulated hiring policy as well as guidelines specifying that disclosure from internet sources shall go to form a part of the evaluation methods in hiring.  Some of the possible pitfalls which need to be factored in are enumerated below:

  • Some sites ask users to accept terms and conditions which prohibit commercial exploitation of any of the information found on their site and also seek to protect the privacy of their members. This could form a hurdle to using the content for a hiring decision.
  • If the information found on any such site discloses any of the candidate’s unconventional life choices, then any rejection could easily expose the organization to a ‘Failure to Hire’ lawsuit alleging discrimination.
  • Discrimination could be proved even without any recruiting – if the statistical imbalances in one’s workforce could be proved or if one of the recruiters owns up to having a discriminatory approach on account of race, religion, gender, age or disability.
  • Using such information may prove counterproductive if there are inaccuracies in tagging the candidate or the profile information was fabricated or fake – which is a possibility with all these sites.
  • So, the all the negative cues left by inappropriate pictures (morphed?), videos (CG?), bad language (impersonation?) will need to be taken with a pinch of salt and corroborated against the total picture presented by the candidate.
  • Even if it is possible to establish that the information clearly and definitely pertains to the candidate, it will be necessary to correlate the negative inferences derived with the performance requirements of the role.
  • There is no clarity on the need for the candidate’s consent to do a social media search, but it may be good to err on the side of caution and include it in the consent form.
  • Is the information derived shared with the candidate? Is it possible for the candidate to raise a dispute and disprove the information?
  • Are we on the right side of various legally enforceable claims of one’s right to online privacy and the terms of service and intellectual property violations of the various websites?

Outsource or In-house?

In view of all these considerations, some employers prefer to seek the intervention of third party vendors to perform any social media search they wish to initiate. The advantages include having the third party vendor knows to stay within the legally permissible limits in gathering the data and to have them filter the data down to what is only relevant to the job and get protected class information redacted before it gets submitted. The employer needs to establish fair and consistent processes across the organization and share them in detail with the third party to derive an actionable report from the publicly available online content pertaining to any candidate, omitting sensitive information.

But what about sites which expressly prohibit the reuse or sale of their content without prior content? Will they make the use of third party vendors questionable? Alternatively, the work could be managed in-house by assigning it a person/team which has no active part in the hiring decision. By extension, let no one involved in the hiring process conduct the search as it may expose them to knowledge or information which is considered illegal for them to seek or have!

As more people – like me – climb on rooftops to talk loudly of the purposes for which recruiters use social media and share the dos and don’ts – we are going to see squeaky clean social media profiles which replace CVs to open the doors to professional growth. A day may even come when people will carry on with all their inappropriate online behaviors using anonymous and fake personae while reserving the best appearance for their professional personae using their proper identities – without even considering it as subversive behavior. Until then, it is better not to lose focus and risk exposure on any of the pitfalls enumerated above.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.