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Social Media’s Impact on Pre-Screening
Matt Messersmith & Karl Ulrich
December 5th, 2013
Social Media Statistics
(Source: http://pewinternet.org/Commentary/2012/March/Pew-Internet-Social-Networking-full-detail.aspx)
Conner Riley
“Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the
daily commute to San Jose and hating the work”
Carly McKinney
“Watching a drug bust go down in the parking lot.
It’s funny cuz I have weed in my car in the
staff parking lot”
Want to Avoid Hiring Them?
People are learning….
… but not everyone!
Common Pre-Screenings
What do these searches have in common? How are social media searches different?
Legal Considerations
Some Cautionary Tales
• The Case of the Spurned Scientist – Gaskill v. University of Kentucky
• With Facebook Friends Like These, Who Needs Enemies – Ehling v. Monmouth Ocean Hospital Services
The “Law” and Social Media in Pre-Employment: Playing Catch-Up
• Discrimination: Title VII; ADEA; ADA; GINA; IRCA
– Disparate treatment– Disparate impact
• Invasion of Privacy
• Federal Stored Communications Act
An Old Law With New Tricks
Federal Stored Communications Act (“SCA”): Protects information the communicator meant to keep private.
Applies to: (1) electronic communications; (2) transmitted via electronic communications service; (3) that are in electronic storage; and (4) that are not public.
Authorized User Exception
Other Laws Affecting Pre-employment
• Fair Credit Reporting Act – Basic requirements for obtaining outside background checks:
– Disclose to the applicant that report will be obtained for employment purposes;
– Obtain applicant’s authorization;– In the event of adverse action, provide a copy of
report and a description of applicant’s rights to applicant
EEOC Enforcement Guidance on Arrest and Conviction Records - 2012
• Highlights of Guidance:
– Avoid blanket “no criminal conviction” policies/practices
– May consider convictions if “job related and consistent with business necessity.”
– Cannot disqualify on fact of arrest alone.– Targeted Screens are valid if they consider (1) nature
of crime; (2) time elapsed; and (3) nature of the job.– Individualized assessment.
13
State Law Regulating Social Media Background Checks
• States who prohibit access to Passwords and/or Usernames.– Arkansas, California, Colorado, Illinois, Maryland,
Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah and Washington.
– Ohio – Not yet, but stay tuned. SB 45 pending before Ohio Senate committee.
Social Media Minefields
• False Identity
• Inaccurate Information
• Disparate Treatment/Impact
• Impermissible Subject Matter
Some Best Practices
• Tailor Background Checks to Bona Fide Qualifications of Position in question
• Be consistent for all competing candidates
• Separate the searcher from the decision-makers
• Avoid “suspect” terms in search criteria
Social Media Policy Statistics
• Only about 40% of employers have formal social-media policies, according to a survey of 470 companies released this year by the Society for Human Resource Management.
• Of those companies with policies, a third have taken disciplinary action against an employee in the past year, the survey found.
FCRA Social Media Searches
How it works:
The Report
• SECTION 1: User Input Search Data & Criteria
The Report
1. HIT NUMBER: The number in order of importance of a hit
2. TYPE: Search (Web Search), Social Media
3. SOURCE: Website or Social Media source of the content
4. LOCATION: Specific url for the content source
5. MATCHED BY: To find out the criteria that was matched by your search look at the ‘Matched By’ Section.
6. KEYWORDS: Matches are listed by word (n# times the word was found on the site).
7. CAPTURED IMAGE: Screenshot of the captured data
• SECTION 2: Report Summary
We Can Help!
What we do…
• Provide the SMI Aware Report
What we don’t do…
• Give opinions on pictures/tweets/posts etc.
• Create social media policies for clients
• Help you select candidates
Signet delivers information, not policies or opinions!
Matt Messersmith
Signet Screening
8080 Beckett Center Drive
Suite 305
West Chester, OH 45069
513-330-6695
www.signetscreening.com
Karl Ulrich
Sebaly Shillito & Dyer
9100 West Chester Towne Centre Drive
Suite 210
West Chester, Ohio 45069
513-644-8125
http://ssdlaw.com/