As social media reports gain traction in the online screening industry, clients often ask the question: How do I adjudicate a social media report?
It’s a fair question—social media screening is still new, and that in and of itself raises a whole new set of logistical and legal questions. The good news is that adjudication for social media screening functions similarly to criminal background screening. After ten years of working with clients to train them in the social media screening process, we’ve learned that adjudication really boils down to three easy pathways: no action needed, adverse action, and more information needed.
No Action Needed
This is the easy part: the vast majority of reports come back clean, meaning less work for you! While this at first may feel suspicious, we like to think of this as a positive sign. The best criminal background report is a clean report, and the same can be said of a social media report. No news is good news.
“But what if I want to see more of their content? Can I still do that?” Unfortunately, viewing more revealing content could open you up to discrimination claims, which is why a policy exists of only reporting potentially problematic business-related behavior. We protect your candidate’s privacy as much as possible, but we’re also here to protect you from making biased hiring decisions!
A clean report could mean two things. It could mean your candidate is as squeaky-clean as they appear. On the other hand, it could indicate that your candidate cares enough to put up privacy settings to delineate clear work-life boundaries. While that’s not a guarantee that potentially negative behavior didn’t take place, it still demonstrates the candidate’s potential to bring their best, most professional selves to the workplace—and leave everything else at the door (or, shall we say, behind a privacy wall).
Adverse Action
Occasionally a report comes back with some flagged content, and what you do with it depends on the severity of the content. In this case, one possible avenue is to start by measuring the flagged behavior against your Code of Conduct. If the offending piece of content is a clear violation of your company values, social media policy, or established behavioral expectations, then adverse action could be a viable option. For example, perhaps a report comes back with a series of violent or threatening posts for a candidate that would be working with a vulnerable population. Those pieces of content could be considered a violation of both the Code of Conduct as well as disqualifying for the particular position, which may be decent grounds for adverse action.
More Information Needed
Oftentimes, the red flags that do show up on reports are for pieces of content that may not quite clearly violate your Code of Conduct but are significant enough to raise an eyebrow. The easiest pathway forward may be to obtain more information—namely, talking to your candidate and checking professional references.
For example, say a report comes back with a flag for a racist Facebook post from several years ago. If, upon speaking with their professional references, it appears that the candidate has a history of intolerance, then you could revert to adverse action provided that intolerance is coded into your Code of Conduct. However, if upon speaking to a former supervisor you learn that the candidate has since grown and has worked well with the people of color on their team, you might conclude that the candidate’s beliefs have evolved and proceed with the hiring process.
Otherwise, if professional references do not provide any additional insight on the subject, the best way forward may be to simply sit down with the candidate and talk candidly about the content that concerns you. Remember, they already gave consent, so using the report as a touchpoint is a fair way to keep the conversation focused and business-related. While discussing flagged content might feel awkward, your hiring manager can use these conversations as “teachable moments” to come alongside candidates and foster a healthy environment for positive growth, using your Code of Conduct as their guide.
About the Author
Bianca Lager is the President of Social Intelligence, a California-based firm that, since 2010, has pioneered the social intelligence industry. As the driving visionary for Social Intelligence, Bianca and her team has worked closely with over 1,200 clients and 50 HRIS partners to create solutions for safe and discrimination-free workplaces through bias-free social intelligence screens. Bianca obtained an MBA from Pepperdine University with a concentration in Dispute Resolution and is a LinkedIn Learning author. Social Intelligence partners with TruView BSI, LLC to offer customized social media screening solutions for TruView Clients.
Copyright 2020 Social Intelligence, all rights reserved.
Social Media: Important Employer Considerations
By Paul Scrom, Esq., Partner Halpern & Scrom Law
While social media accounts provide a potential trove of information regarding candidates, doing so raises potential legal issues if employers are not diligent in monitoring their own research conducted on social media platforms.
If employers look at an employee’s social media account, they become aware of traits protected by antidiscrimination laws. These include race, gender, disability status, religion, and more. As such, it is best practice to look at a social media account only after meeting the candidate in person, when employers would have likely become appraised of many of these characteristics. Keep in mind, this is not true if, for example, a candidate does not disclose a disability that is not apparent in the interview, but writes about it on their social media account. Employers are prohibited from using protected characteristics in making any employment decisions.
Because employers may inadvertently come across information related to protected characteristics when looking at a candidate’s social media, it is best practice to utilize a third-party screening service to conduct social media checks. The service relays information that would be helpful to the employer in making its hiring decision, while withholding information related to protected characteristics.
Furthermore, employers should not look at any social media postings that are not on a candidate’s public profile. Looking at private social media posts, or asking for a candidate’s social media login credentials, can raise privacy law concerns. Employers must ensure that their own social media accounts and job postings indicate that they are an “equal opportunity employer,” and their policies and practices should reflect the same.
About the Author
Paul L. Scrom Jr., Esq., is a Partner at Halpern & Scrom Law. He devotes his legal practice to representing organizations in all employment law matters. Paul regularly advises Human Resources executives, in-house counsel, management, and business owners on compliance and preventative measures in issues of employee discipline, terminations, discrimination/harassment, wages and hours, independent contractor classifications, restrictive covenants, and social media. Paul received his Juris Doctorate in 2012 from the Maurice A. Deane School of Law at Hofstra University. During law school, Paul was Articles Editor of the Hofstra Labor and Employment Law Journal. Paul graduated Magna Cum Laude from Binghamton University in 2009 with a B.A. in both Philosophy of Law and History. Paul is admitted to the practice of law in the states of New York, New Jersey and the United States District Court for the Southern and Eastern Districts of New York.
Copyright 2021 Halpern & Scrom Law, all rights reserved.