Too much information: The dangers of stalking employees on social media

These days, employers have a treasure trove of information at their fingertips about current and potential employees, but while they’re mining for these valuable nuggets, they need to make sure they aren’t stepping into a minefield.

Facebook, Twitter, LinkedIn, and other popular social media sites often yield information about job applicants’ habits, character, and attitudes — or even revealing tidbits like spelling ability — that employers could never glean from a bland résumé. But if they aren’t careful, they could end up finding out more than they bargained for, and that could expose them to lawsuits or even put them in the crosshairs of regulators.

Mindy Rowland wants you to avoid those pitfalls. As the vice president and chief legal officer for The Employer Group, Rowland is familiar with the mistakes employers sometimes make when it comes to snooping on social media.

Mistake No. 1, she says, is not taking the issue seriously enough and not setting company-wide policies that might protect them.

Mindy Rowland

“Of the companies that are using social media as a form of background check before they make hires, 76% of them don’t have a policy in place about it,” said Rowland. “In other words, they’re kind of ad hoc-ing it with respect to when they decide what they’re going to look at, who they’re going to pass the information on to, and how they’re going to handle it. So I would say the vast majority of companies do not have a handle on what it is they should or should not be doing.”

That’s a big oversight, says Rowland, and it could lead to big consequences.

On Nov. 19 at the Alliant Energy Center, Rowland will lead an informational seminar titled “Is Your HR Department Playing Detective With Social Media?” Part of the In Business Seminar Series, the program will explore how social media relates to three stages of employment (pre-hire, current employment, and post employment) and will give attendees guidance on how to do social media detective work without running afoul of employment laws. In addition to Rowland, the seminar’s panelists will include Danielle Petta, human resources manager for Saris Cycling Group, and Jennifer S. Mirus, an attorney with Boardman & Clark LLP.

One of the biggest mistakes companies make, says Rowland, is leaping onto social media platforms without considering the consequences.

“[Companies often] start looking before they realize how much they’re going to find out that they shouldn’t be seeing,” said Rowland. “In other words, I think curiosity gets the best of them and they start looking, and then they find out information about an applicant’s protected classes, such as their race, their sexual orientation, their age, or whether they’ve got a disability.”

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Federal and state laws that protect employees and job applicants based on race, age, and disability are generally pretty familiar to HR departments, and they know that it’s best not to know too much about an applicant’s protected classes lest they open themselves up to lawsuits, but Facebook or Google searches can trip up employers in other, less obvious ways as well. For instance, the Genetic Information Nondiscrimination Act prohibits discrimination based on genetic information. And while detailed genetic data is unlikely to end up on a job applicant’s Facebook post, it could be revealed in an indirect way.

“You wouldn’t think you could find out somebody’s genetic information over the Internet on a publicly available site, but if somebody’s got a picture with their mom saying, ‘14 years breast cancer, going strong’ or ‘I’m recovering from breast cancer, considering a mastectomy based on my mom’s history,’ something like that, you can find out their genetic information pretty quickly.”

Stepping in and stepping lightly

Given the problems associated with doing social media detective work, some companies might be tempted to simply declare the Internet off-limits when making hiring decisions. According to Rowland, that might be an overreaction.

“It seems that social media, whether it’s Facebook, Twitter, LinkedIn, or Google for that matter, it’s really a conduit to find out information that employers didn’t used to be able to find out,” said Rowland. “So I think it’s a little unrealistic to expect that they’re not going to look. So I think a better plan is to recognize that you’re going to look and educate the people who are doing the background check to make sure that they know what’s appropriate and what’s not.”

According to Rowland, some companies are finding ways to outsource their social media snooping, which helps protect HR departments from accusations that they factored information about race, age, or disability into their hiring decisions.

“There are some companies that go out and do this as a matter of course; it’s their business,” said Rowland. “One that I uncovered is a company called Social Intelligence. … They’ll do all the publicly available Internet searches on social media and otherwise, put it in a package, take out all the information you’re not supposed to see based on boxes that you check as a company, and then they will give you that information for a fee.”

Rowland cautions that if you do outsource your Internet detective work, you need to make sure the third party that’s conducting your research complies with the Fair Credit Reporting Act, which requires disclosure and the consent of the applicant.

However, it is possible to conduct the searches in-house, so long as the snoopers take care to insulate the company’s decision-makers from sensitive information.

“If you put up a barrier of sorts so that the decision-maker can honestly say, ‘I didn’t know that the person had this, or didn’t know this, that was never communicated to me — what was communicated to me was that the person can’t spell, that the person every Thursday, Friday, Saturday, and Sunday is making comments about partying really hard and being hungover at work all the time, and that’s the reason we made the decision,’ then you can certainly lessen your risk of liability.”

Of course, if an employer does discover sensitive information despite taking some precautions, that doesn’t necessarily mean all is lost. According to Rowland, employers can still protect themselves by adhering to best practices.

“Let’s say an employer wants to check just LinkedIn to check résumé information and to verify employment history and that sort of thing, and in the meantime the employer found out that the applicant has had a lot of affiliations with various labor unions over the years,” said Rowland. “Under the National Labor Relations Act, you can’t discriminate based on someone’s participation in a labor union, so that’s information that you certainly didn’t mean to learn, but you did learn it.

“At that point, once the employer decides that it’s not going to offer a job to that applicant, the best thing to do is document, document, document and explain why it was the person wasn’t hired. Have very good comparisons as to this person’s qualifications versus the person that was hired, and hopefully that would be enough to shield you from some sort of claim where somebody says, ‘Well you discriminated against me based on what you learned on my LinkedIn profile.’”

If you would like to attend the Nov. 19 IB Seminar, click here for information on registration.

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