Social media background checks – a minefield for recruiters

At a time when social media profiles are the norm and many people are falling into the trap of “over-sharing” personal information online, it is perhaps inevitable that recruiters would be tempted to have a sneaky peek at the digital lives being led by potential recruits to their organisations.

In many cases, it is an easy opportunity to get an insight into the true character of the person who just aced their interview but who you still don’t know much about.

But the practice of using online research in hiring decisions could land employers in a legal quagmire and should be firmly resisted, according to a number of recruiters and lawyers.

One of them – Alex Rickard, head of employee proposition at law firm Towry – says that the only fair way to build web checks into the recruitment process is to “warn candidates of your intention and give them the chance to clean up their online profile before you get started”.

As many as 70% of US recruiters have allegedly rejected candidates following social media checks carried out either by in-house recruitment staff or by third-party service providers. Of particular concern are online profiles linking candidates to extreme political views or to images of sexually explicit or illegal activity.

Legal and ethical alarm bells

The prospect of British employers adding Facebook or YouTube research to either the general recruitment screening process or to the background checks that routinely follow job offers “should raise alarm bells both legally and ethically,” says Sarah Gordon, associate director of the Sammons Group.

“I see the practice of social media vetting as akin to hiring a private detective to snoop on a candidate or perhaps paying someone to break into their home and rifle through their drawers. It isn’t fair, it shouldn’t be necessary and in my view, it’s a trend that reputable employers should steer well clear of,” Gordon says.

Turning down an apparently exemplary candidate following a social media check has already landed one US employer – the University of Kentucky – in trouble.

The university was forced to make a $125,000 out-of-court settlement to a UK-born scientist who, despite being the best fit for a director-level job, was turned down after being found to have expressed creationist views online – which were felt to conflict with the role he had applied for. This should be a warning to all employers not to experiment with web searching, says Sarah Beeby, senior associate at law firm SNR Denton.

“If a firm offer has been made, accepted and subsequently withdrawn after online vetting, there is certainly the potential for a candidate to claim damages and compensation, even if they cannot actually claim unfair dismissal.”

Acas recommendations

This view echoes recommendations made by Acas recently, as it launched its first social media guide for employers. As well as offering guidelines on managing employees’ use of social media, Acas suggested that companies checking on candidates via social networks leave themselves open to charges of discrimination, as they are likely to glean information ranging from sexual orientation and ethnicity to religion, age and political views, making it easier for rejected candidates to claim that they have been discriminated against.

While it may be unwise to make judgements about employability on the basis of someone’s online comments or status updates, it is the issue of unsavoury images that holds even more danger for employers, believes Beeby.

“By relying on potentially inaccurate web images that may have been ‘tagged’ to your candidate, you run a serious risk of discriminating against people; particularly if you turn someone down for a job after seeing images of them in a wheelchair, with their children, or perhaps attending a religious festival.

“It may be very tempting for employers to use Facebook and other sites to add another layer of screening to their recruitment process but if their existing procedures are robust enough, they really shouldn’t need to run the enormous risks of probing too deeply into what are, in effect, purely social sites, whether directly or via a specialist search firm,” she adds.

Uninhibited web behaviour

The fashion for uninhibited behaviour on the web is undoubtedly a gift for recruitment staff keen to know a little more about the views, motivations and lifestyles of job seekers, but according to Jacqueline Wiltshire, director of HR and organisational development at Ealing Council, it’s what an employer does with any resulting information that counts.

“There’s nothing sneaky about recruitment managers having a quick look at people’s profiles online, but we believe that formally using social networking sites at the screening stage is neither cost-effective nor useful and to use a third party to do it could lead to all sorts of inaccuracies over things like duplicate names.”

The council already carries out a range of checks, either basic or enhanced, on issues such as claimed qualifications or benefits entitlement and if these unearth something the council isn’t happy with, they go back to the individual and give them a chance to explain.

“I can only see online material being really relevant if it appears to utterly fly in the face of our codes of conduct – perhaps photographs of inappropriate behaviour with children by someone being hired to work in children’s services, or evidence that an agency worker is not legally entitled to work for us,” says Wiltshire.

“If something like that was brought to our attention, we would of course be forced to act and could of course withdraw any existing job offer.”

Online indiscretions best ignored

While the US experience thus far is that photos and videos tend to attract more alarm among recruiters than ill-conceived blogging or postings, Wiltshire believes that many online indiscretions are best ignored.

“To an extent, it depends on how senior the hire is; a CEO job perhaps demands greater care and attention than a junior admin position. But I think it’s worth pointing out that even if we in HR don’t like something we see about a candidate on a social networking site, we have to be grown up and accept that we need to fill positions and work with people who may have very different interests and private lives to our own.

“If we do become too puritanical about what people do in their private lives, we may find it difficult to fill certain jobs altogether,” she adds.

Rickard agrees. “When it comes to most positions, we already have detailed CVs and subsequent checking procedures to find out as much as we need to know about a person before they begin working for us.

“If their online activity isn’t strictly relevant to their ability to perform well, then I would guard against delving too deeply unless the post is a highly sensitive one.”

German social media legislation

Last year, the German Parliament signalled its intention to draw a legal distinction between social networking sites such as Facebook and professional networks such as LinkedIn; effectively banning candidate-vetting via the former but permitting employers to search using the latter.

While the resultant law has yet to be passed, Sarah Gordon believes that the UK may eventually be forced to follow Germany’s lead.

“We all know that our LinkedIn profiles and postings may well be looked at as part of the recruitment process and, because it is so transparent, this strikes me as totally fair. But Facebook is a very different matter.

“While I hope that UK employers will fall short of using social networking to find out more about job seekers, I would urge all candidates to both understand and use the privacy settings on sites such as Facebook to screen out any potential snooping.”

Adopt a watch-and-wait attitude

While social sites may pose the biggest danger to the naïve and the unguarded, Gordon adds a warning to web users in general.

“We should all know by now we need to avoid those awful ‘sexykitten@hotmail’ email addresses if we want to be taken more seriously by employers.”

“But don’t think that expressing strong views on X or Y via the LinkedIn discussion boards somehow don’t count. These can be just as damaging to your professional reputation.”

A final word goes to Sarah Beeby. “Our clients tell us that they’re only just starting to understand how powerful social networking sites can be and they need to be guided.

“At this present time, the best advice is to adopt a watch-and-wait attitude until the various complex privacy issues around all these sites are fully resolved.”

A policy on using social media to carry out background checks on candidates is available on XpertHR.

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