Social-media searches by employers are all the rage when hiring new employees. Every time talk about social media, inevitably the discussion turns to the question, “Can I check a candidate’s Facebook page?” Last week, at my presentation to Delaware SHRM, this was the main topic of conversation–how to lawfully and ethically incorporate social-media searches in your background checks without setting your organization up for lawsuits and liability.
I offer a “solution” to the problem of potential legal risk with a multi-step plan to avoid the pitfalls that could otherwise arise. One of the steps in this plan is to notify candidates of the possibility that you will be monitoring their online activity, including any social-networking profiles, such as Facebook, LinkedIn, or MySpace pages. It’s easy to give the notice–the addition of a single sentence in your standard background-check notice will do the trick. A second step is to get consent. Again, a simple step because you’re already having the candidates sign off on the background-check form.
After my presentation to Delaware SHRM last week, the program coordinator said that quite a few of the participants asked her after the session whether they could “ask” (read, “require”) current employees to give the same type of consent. Well, the answer is “yes and no.” (You didn’t think I was going to give a simple yes-or-no answer, did you?)
The “no” part of the answer comes from the argument that consent can’t truly be given if the “request” is actually a demand. The “yes” part of the answer comes from the argument that there’d be no legal liability, so what’s to stop you?
Ok, so both arguments are only half right, but here’s the full truth of it. You don’t really stand to gain anything from “requiring consent.” You don’t need consent to search what is public information–regardless of the sometimes distorted definition of “public” as many employees understand it. But, at the same time, there’s quite a bit to gained from being honest and transparent with your employees.
Instead of consent, consider disclosure. Explain to employees: (1) what interests of the organization you are trying to protect (i.e., confidentiality, anti-harassment, regulatory compliance, etc.); (2) which online activities the organization believes pose the most risk to its interests (i.e., discriminatory statements, posting pictures taken inside the workplace, etc.); and (3) the lengths and limits of the monitoring efforts the organization believes will prevent these risks.
See also these posts relating to social media in the workplace: