Do you use social media to conduct a social media “reference check” on your applicants?  It is likely that you are one of the 91% of employers which admit to using social media to screen applicants via Facebook, LinkedIn and Twitter.  Why?  Because using social media to screen applicants for health care positions is extremely easy to do.  The problem is that it is not as easy to do well.  If you aren’t careful, you may be creating liability under a number of different state or federal laws. For example:

  • Civil rights laws (e.g., you learn from social media that a candidate for a medical assistant position is pregnant and then, when you end up choosing a different candidate, the pregnant applicant claims the decision not to hire her was discriminatory).
  • State “lawful consumable products laws” (e.g., you decide not to hire a lab tech because they have numerous Facebook posts showing themselves drinking alcohol and using tobacco – and they are over age 21).
  • Fair Credit Reporting Act (and state equivalents) (e.g., you pay a third party to compile the social media background information on an applicant but you do not obtain the applicant’s consent or meet the other requirements of the Fair Credit Reporting Act).
  • State social media password legislation (e.g., you require that all applicants provide their Facebook login information – including their passwords – so you can see an “uncensored” view of their Facebook activity).

So how can you avoid these problems? We recommend a thoughtful and consistent social media screening strategy that addresses the following:

Who’s doing the screening?  Are you doing the social media screening in-house or are you hiring a third party? If you’re doing the screening in-house, can you have the screening completed by a non-decisionmaker and can you train the screener to filter out protected class information?  This is harder than it sounds but can provide a good defense to potential discrimination claims.  If you hire a third party, ensure Fair Credit Reporting Act compliance.  This means obtaining appropriate consent from applicants and providing notice to applicants when not chosen for a position because of something that third party reports back to you.

What are you looking for?  You should be looking for both positive and negative information.  More importantly, you should insure there is some job-related reason for looking for the information.  Finally, you should look for the same types of information for all applicants – be consistent.

Where/how are you searching?  What sites are you going to search?  For example, do you really have a need to see an applicant’s Facebook page – even if the applicant’s privacy settings are “public” – or can you limit your searching to LinkedIn?  What are your search strategies and search terms?  Refine those search terms to pick up job-related criteria and avoid other personal information that might not relate in any way to the position you are filling. Use the same process for all applicants. Again, be consistent.

When are you searching?  Are you conducting the social media screen after receiving an application or resume? After an interview? After a conditional job offer? The later in the process, the less likely you’ll learn protected class information for individuals who do not end up “making the cut.”

As with many things in life, with social media screening – an “ounce of prevention is worth a pound of cure.” Taking the time to be thoughtful and planful about how the screening process will work will go a long way in limiting any potential legal liability.

Do you conduct a social media reference check on your candidates?  Do you have an appropriate plan in place to protect your organization?