Most companies conduct informal “quickie” Social Media Background Checks as recruits move through the recruiting and on-boarding routines. But – be careful. There are many ways that these ad-hoc, informal processes can backfire. At “best” you will reject a great candidate based on misunderstood information; at worst you will reject the candidate AND end up in court.

Make sure that your in-house recruiters DON’T –

Relevance
Social media postings may sometimes be alarming – but irrelevant for a particular job at your company. I once heard an employer express concerns about the frequent sex-related postings and after-hours meetups of a new cost accountant. My response was “does this affect the person’s ability to perform the job?” The answer is “No, but it could be a distraction for others in this department.” True, but like so many other splashes, this would soon fade into the background. The take-away here is to think about what is relevant in each situation, communicate this in advance to whoever is doing the Social Media Background Check, and, as always, be consistent.

Is this who I think it is?
There are so many possibilities of screwing up and false positives may result. Does this candidate really brag about drinking on the job? There is a method for getting to the bottom of this and finding out for sure, but it takes time and work. If candidates are rejected before going through all of this, then just about everyone loses. And not to mention that what you’ve done may violate federal or state law.

State and Federal Law
Besides the many federal agencies with a concern about Social Media Background Checks, most states these days have their own rules. For example, Arkansas, California, Colorado, Delaware, Illinois, Maryland, Michigan, New Jersey and probably others do not allow employers to require that job candidates provide their logins to Facebook et al. This sure was easy back in the day, but now can land employers in big trouble. There are panoply of other laws and regulations too, but we can’t cover here. Just be aware that recruiters should be briefed by an attorney or knowledgeable expert on your localized situation.

Your New Friend, the NLRB and Protected Activity
Many employers routinely check around to see who is talking about the company, its products, services, employees and management. They want to see if there is too much negative content out there, or if trade secrets are revealed online. But due to recent rulings, be careful – If a Social Media Background Investigation finds that an existing employee or recruit is whining about the current employer, it may be problematic for your management to even see this information before a hiring decision is made. If these complaints are among other employees, the NLRB (National Labor Relations Board) may well find this a “protected activity.” But what’s the difference between a protected activity and defamation? (That’s a rhetorical question). The NLRB has been active in pursuing these situations.

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