Issue link: https://www.e-digitaleditions.com/i/138053
Employee Screening the candidate of the results to give him or her the opportunity to respond and potentially correct the information," he says. situation insists upon stringent legal counsel when establishing policies. Dubecky agrees with the merits of this approach, noting that under the Fair Credit Reporting Act, job candidates are provided the ability to dispute information in reports involving them. "Even though a decision may not have been based on information such as race, age or religion, the very act of conducting a social media search means that an employer likely has this information," he says. "If taken to task, the employer may be in the unenviable position of proving a negative; namely that the decision was not based on these factors." Owens cites another "rock and a hard place" situation for employers—the potential adverse impact of not screening candidates' social media activities. "Even if a company does not perform social media background screening, organizations can still be liable for social media content posted by a candidate," he explains. "If there were clear indications online that a hired candidate was pre-disposed to negative behavior, the organization could be found guilty of negligent hiring in a court of law. Millwee has a similar perspective, commenting that if the content found on a site indicates a protected group status, the employer may want to redact this content. Nevertheless, he warns to "tread carefully." Compounding Complications There are other nuances to consider. Millwee bought up the scenario of a candidate who has admitted past criminal or violent activities on a social media site. "An employer may be able to make an argument that hiring the candidate poses a risk of negligent hiring claims," he says. Yet, if the employer isn't careful, it could invite another legal risk—the so-called "ban the box" fair hiring practices in a growing number of states removing unfair barriers to employment of people with criminal records. The "box" is the question on hiring forms asking about previous criminal acts. The National Employment Law Project notes that 65 million Americans, or one in four adults, have a criminal record that may show up on a routine background check. Says Owen, "Leveraging information that is irrelevant to the job can have a disparate impact on a protected class and leave the company in violation of Title VII of the Civil Rights Act of 1967." Certainly, this [40] HRO TODAY MAGAZINE | JUNE 2013 Small wonder why many employers simply pass on screening candidates on social media sites for recruiting purposes. Many, however, are finding alternate approaches that provide just as much information to accurately assess a person's behaviors and job potential. "For example, if drug use is a concern, there are well established approaches to drug screening that pose no legal risk and provide extremely accurate results," Owens says. Those employers that insist on moving forward with social media screening are advised to fully document these activities. "Detailed records will demonstrate that your hiring decisions were based on screening practices that were applied consistently and based on objective and job-relevant information," Owens says. "Should your hiring decisions be called into question, these records can help you prove that discrimination was not a factor." Millwee agrees: "Documentation can be your salvation—or a powerful sword. As the federal government and states continue to review social media screening activities, employers must continue to carefully approach the subject." Russ Banham can be reached at www.russbanham.com