All organizations would like to believe that employees and new hires are smart, capable and masters of common sense. While at times this may be the case, in all cases this is the goal. As such, it is no surprise that so many human resources departments and recruiters, including banks, are considering how to leverage social media to successfully mine it for nuggets of information that will ensure hiring decisions are sound and will result in strong, productive team members.
Yes, social media is a great tool to identify and interact with potential applicants. Yes, social media is a great tool to learn more about applicant’s professional backgrounds, experiences, and goals. And yes, social media provides access to applicant information that is generally not available through the traditional interview process. However, as we have come to learn throughout this book, nothing with social media comes without a cost.
The general consensus among HR professionals is that the extraneous information accessible through social media should not be considered as part of the recruiting process in order to avoid complications in the hiring process that may run afoul of human resources laws. Generally, to the extent that organizations scour social media for recruiting purposes, employers and recruiters should stay focused on capturing and evaluating the information that addresses the applicant’s qualifications and expertise. Reliance on unrelated information can lead to false impressions of applicants, resulting in lost opportunities at hiring qualified candidates as well as possible judgments based on prohibited information. Unless the information suggests highly inappropriate or illegal activity, the information should be dismissed. Everyone is different. Some people have unique and quirky interests and activities that they participate in outside of work. There is nothing wrong with that and it certainly should not be the basis for passing up on an otherwise strong candidate.
To the extent an organization decides to utilize social media as part of the employment process it is wise to provide applicants with written notice that the background check may involve a review of any publicly-available social media sites. Once the disclosure is made it is important to keep any inquiry limited to information that is “publicly available.” In other words, the process should not require that applicants provide passwords to social media sites nor should it require that applicants “friend,” “like” or otherwise grant the organization access to information that would not otherwise be readily accessible. Such demands, besides being extraordinarily invasive, may violate federal and state privacy statutes as well as may lead to violations of “legal activities” laws that may prohibit employers from taking certain actions based on the “personal time” activities of employees and applicants.
The February 2010 issue of Practical Law: The Journal lists the following risks associated with social media usage as part of the recruiting process:
• Discrimination violations due to adverse employment decisions based on protected class information learned through social media.
• National Labor Relations Act ("NLRA") violations due to employment actions inconsistent with the NLRA.
• Violation of the Fair Credit Reporting Act (“FCRA”) and its state equivalents as a result of the use of consumer reports in conducting background checks without providing the required adverse action disclosure.
Based upon the potential legal pitfalls it is essential that bank HR departments establish a formal written social media policy that specifically addresses how social media may be utilized. Further, human resources personnel should be well trained to understand not only the social media policy but also the applicable laws such as the NLRA, FCRA and any other applicable laws, rules and regulations.