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Guidelines for Screening Social Networks in Hiring

Ellen Heffernan and Steven J. McDonald

You can find out practically anything about anyone online these days, including potential hires. What’s the best way to use social networking data and what pitfalls should you avoid?

Ellen Heffernan, partner in the Spelman & Johnson Group, and Steven J. McDonald, general counsel at the Rhode Island School of Design, spoke at the NASPA conference in Philadelphia in March about the ethical, legal and practical sides of using the Internet to screen job applicants.

Almost half of the hiring managers in a recent survey said they used the Internet to screen job applicants, with 30% checking Facebook and 26% checking LinkedIn. More than 30% of the surveyed employers said they’d rejected candidates for reasons they found online: misleading information, badmouthing a former employer, sharing confidential information, provocative or inappropriate photos or evidence of drinking. Applicants have also been rejected and employees fired (“dooced”) for their blogs, online comments in chat rooms and membership in controversial groups.

Lots of useful information is available online, such as:

• Criminal background
• Job history
• Recommendations and connections
• Educational background
• Personal qualities in photos and blogs

Some check volunteer activities to evaluate a candidate’s fit with their organizational culture. The CIA uses social media to identify applicants and check out their connections. Fortune magazine has said that the paper resume and cover letter will soon be obsolete. Job seekers will get their own domain name and put all their information online.

Bozeman MT asked candidates for city jobs to list all their current or personal Web pages including chat rooms, social clubs, Facebook, Google, Yahoo, YouTube, MySpace, together with passwords for access. This direct approach reduces confusion if the applicant’s name is fairly common. When some balked at providing passwords, the city asked them to “friend” Bozeman for sharing information.

Most employers considering the use of candidates’ online personal information start by asking what’s technically possible, McDonald said, but that’s only one of several frameworks.

• What can you do? Most searches are possible. A car can go 100 miles per hour but that doesn’t mean you should drive that fast.

• What may you do? Posted speed limits tell how fast you may legally drive; Internet search limits are less clearly posted.

• What should you do? Weather, traffic and road conditions all influence a good driver’s choices.

• What must you do? What does the law require in your hiring process?

These questions may have four different sets of answers.

Can we?

The first question is the easiest. Technically, yes we can. Americans spend 23% of their online time on social networking sites. Heaps of data is out there.

Problem #1: There’s too much. Facebook alone has 500 million active users collectively spending billions of minutes a month over billions of pieces of content. It’s too much to read for every candidate.

Problem #2: Remember the saying, “If it’s in print it must be true”? Not so, and certainly not for the Internet, which goes through little vetting.

Monitoring Facebook for violations of the student code of conduct, campus security at George Washington University raided a beer blast (announced on Facebook) to find cake and cookies decorated with the word “beer” and students holding shot glasses of non-alcoholic beverages.

May we?

Technology has moved faster than legislation, so laws aren’t in place to cover Internet searches for hiring. One legal question is whether employers’ use of social networking sites invades candidates’ privacy.

Each state has its own laws on privacy issues. If someone voluntarily puts something up publicly in cyberspace, there’s no liability for looking at it. But if they put it up behind a password, it’s private. “Friends” are also private, and terms of service may limit how a site can be used.

McDonald is uncomfortable with third-party “stealth through proxy” where you have an individual “friend” someone and then give you the information. It’s unfair and dishonest. Two cases involving students illustrate the complexities of college policy around personal postings.

“Drunken Pirate” was the title of a 2006 MySpace photo showing 25-year-old student teacher Stacy Snyder wearing a pirate hat and drinking from a plastic cup. Millersville University PA, where she was approaching graduation, denied her an education degree on the grounds that she was promoting drinking to her underage students. She sued, but the court rejected her First Amendment argument, saying she was a public employee whose speech did not regard a public concern.

In a more recent case, three nursing students at Johnson County Community College KS photographed themselves with the placenta from a recently delivered baby and posted the photos on Facebook. The college suspended them from its nursing program for inappropriate behavior that violated patients’ confidentiality. They sued for denial of due process; the judge ordered them reinstated.

Should we?

Apart from judicial rulings, should a photo of an applicant as a drunken sailor or posed with a placenta rule out a candidate for your job opening? What about a blog reference to being bored in her current job or having run-ins with her supervisor?

It’s your call. “The good news is that we get to choose. The bad news is that we have to choose,” he said. The real question is: What should you do? What is advisable?

Many considerations come into play:

• Risks (both positive and negative)
• Rewards
• Costs
• Institutional values
• Relationships
• Public relations
• Practicalities

Implications for discrimination law belong high on your list of risks. There are a lot of things you’re better off not knowing about a candidate, especially in the early stages of the search.

Without even trying, online you may find out an applicant’s age, gender, race, ethnic origin, physical disability, veteran status and sexual orientation. If you screen the person out, be prepared to prove that such information wasn’t a factor in their candidacy.

These precautions help, but don’t offer complete protection:

1. Third-party search. Have Human Resources do the search and pass you only the job-related information you can legally use. This should not be done by the same people doing any discretionary screening.

2. Consistency. Hold the identical search for every applicant and specify why you’re doing it. You can’t just say, “This one looks perfectly respectable but we’d better dig further into that one in case there’s any dirt.” Instead, “The key is consistency: who gets Googled, when and how it is used,” Heffernan said.

3. Stage in the process. It’s riskier, more labor-intensive and generally not worth it to do Internet searches on all applicants from the start. Late in the process, it’s a different story. When you’ve narrowed it down to one finalist, you could have HR do a wider check for any red flags that could arguably affect the job.

“We need to rein in search committees. You can contaminate the search,” she said. She asks search committees at first blush not to use Google. The Internet lends itself to rumor-mongering. Search committees must work with verifiable information, not gossip.

Don’t rely on the Internet for accurate information; have the candidate sign off on any searches you do. You can’t use the California list of sex offenders, she said. You can’t use student postings or Rate My Professors; anything there might have been posted out of malice.

You’re better off not knowing if the candidate’s in five other searches, available data that can sink a perfectly good candidate. Qualified people will be less willing to apply if they can’t trust their applications to be confidential.

Nineteen states say you can’t go online to look for a smoking gun. Eight say you can’t search online for evidence of drinking.

Don’t check applicants’ credit ratings; even when accurate, they are not job-related or justified by business necessity. A past period of difficulty paying bills because of unemployment or a medical emergency is not evidence of irresponsibility.

Some states have banned using credit reports in hiring, as they make it all the harder for the unemployed to get a job. The Equal Employment Opportunity Commission sued the proprietary Kaplan Higher Education Corporation for the practice because of its disparate impact on blacks.

Must we?

Before the job contract is final, additional checks are appropriate. By the time you’ve interviewed by video, phone or face to face, a lot of the prohibited information (age, race) has been disclosed anyway.

Make your job offer contingent on an Internet check. If evidence from that check leads you to withdraw the offer, notify the candidate of specifics by certified mail.

By having HR do the checks, you can limit your information to what’s job-related. It’s not illegal to get arrested so you’re better off not knowing, but a felony conviction is a matter of public record that could be a legitimate dealbreaker. Public universities and colleges may face more state restrictions than private ones on how certain kinds of information may be used.

Your obligation to hire responsibly is legal as well as institutional; if you hire someone whom you could reasonably have expected to do bad things and then he does, you may be guilty of negligent hiring. You must show that you exercised reasonable care.

What’s reasonable depends in part on the position and its associated risks. You have a duty to try to protect the school from liability. An ICU nurse will be screened more closely than a window washer. Nobody yet has been sued for failing to look at Facebook.

Focus on information that threatens potential harm to the university, not the individual’s personal peccadilloes. So what if they went to a Star Wars convention? A chief-of-police search turned up blog notes from police who’d been through the academy together talking like 12-year-olds— scarcely a threat to the community.

Youthful indiscretions are a fact of life. President Clinton “never inhaled,” Bush was “young and foolish” and Obama “inhaled frequently—that was the point.” Students have been into sex, drugs and rock ’n roll for decades.

“The Internet does not make you stupid; it just makes your stupidity more accessible to others,” Heffernan said. Use it wisely as an appropriate part of due diligence, not as a technological marvel to exploit just because you can.

Take precautions against potential employers who may not always exercise restraint in their use of the Internet:

• Google yourself to see what’s online and try to clean it up.

• Avoid photos and words that could come back to haunt you, even in chat rooms or other non-work settings.

• Remember that once something’s out there, you can never be sure it’s deleted; you can’t control who has copied it.

• Create positive blogs about yourself, emphasizing service learning or volunteer activities, for example.

• If you Google search committee members, use only relevant public information about them in conversation: “I see you went to the University of Michigan,” but not “I see you went abroad.”

Contacts:

Heffernan: eth@sjgsearch.com  
and
McDonald: smcdonal@risd.edu

Cook, Sarah. (2011, October). Guidelines for Screening Social Networks in Hiring. Women in Higher Education, 20(10), 17-18.