Download - Social Media's Impact on Pre-Screening

Social Media’s Impact on Pre-Screening

Matt Messersmith & Karl Ulrich

December 5th, 2013

http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&docid=GXTSJIC9RNAOPM&tbnid=O9UA65RO-jRURM:&ved=0CAUQjRw&url=http%3A%2F%2Fwww.graphicsfuel.com%2F2013%2F03%2Fpopular-social-media-icons-psd-png%2F&ei=cnCTUsOPEc3NsQSY5ILoDQ&bvm=bv.56988011,d.cGU&psig=AFQjCNFfC6TZ8Q5To3Zh3ojrBinw6fKdpA&ust=1385480677032380

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.

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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

[email protected]

www.signetscreening.com

Karl Ulrich

Sebaly Shillito & Dyer

9100 West Chester Towne Centre Drive

Suite 210

West Chester, Ohio 45069

513-644-8125

[email protected]

http://ssdlaw.com/