October 15, 2018

Screening Your Candidates’ Online Content? Don’t Miss This Detail

Looking to learn more about social media and online screening? Download our e-book on the legality of social media screening, where we interview one of the nation’s top employment lawyers specializing in the Fair Credit Reporting Act (FCRA) and background screening litigations.

Online content is powerful. From social media to personal blogs, the internet has become one of the largest platforms for people to express themselves. With more and more information being created each day, our online profiles often show more about who we are than we ever share in person.

Companies have recognized the value of this information when determining how well a current or prospective employee will further their mission and values, but there can often be more questions than answers around online screening.

When you discover questionable content, what should you do? What are the steps to take when you see something that might be problematic for a particular role?

While every business has unique policies to follow based on state and local regulations, nearly all companies can adopt a few common principles to help ensure compliance within a complex legal landscape. The key to enacting any adverse decision when screening is to focus on the requirements of the job—and to base decisions on the candidate’s overall profile, not individual pieces of content.

When an employee or candidate has questionable online content:

1) Know when to avoid taking action

Be careful of taking an adverse action when the content has nothing to do with the job. It doesn’t make sense to not hire someone as a checkout clerk because they have an accident on their driving record. The candidate’s driving record doesn’t affect their ability to serve customers. Therefore, it can’t be used to justify adverse action. In the same vein, always take the full context of any post into account before making a judgment call on a prospective or current employee. While a post might look alarming at first glance, an explanation or investigation might reveal that the post is not as alarming as you assumed.

2) Remember the bigger picture

Remember that the information you find online is a piece of a larger puzzle. Though one bad hire can corrode the functioning of a whole team, a “bad” post doesn’t always mean a bad candidate. Take care to avoid making assumptions about the whole person based on a single piece of content, especially if you are screening manually. Instead, we recommend looking at troubling content as a point of conversation or a thread to pull for further compliant investigation.

3) Draw a line between the behavior and the job

Let’s say you’ve found troubling information about a candidate or employee. Under what circumstances can you formulate and deliver a pre-adverse or adverse notification? As a guiding principle, draw a straight line between the online behavior and its relationship to a specific aspect of the job in question.

To do this, take a moment to visualize a job description. Job postings typically discuss the company as well as the hard and soft requirements of the job. That means that when evaluating candidates, you are assessing their candidacy based on their ability to meet the requirements you have listed. By extension, when evaluating online content, a similar criteria applies. How does it impact the job?

 When evaluating online content, draw a line between the behavior and the job
When evaluating online content, draw a line between the behavior and the job

The answer is that there may be grounds for an adverse action when the behavior has to do with the job. For example, a community manager with a record of bigotry may warrant an adverse action. Similarly, a pharmaceutical sales rep tasked with handling inventory may merit an adverse action if they have questionable online content around drugs. In most instances, when taking action on content, it comes down to how your candidate’s or employee’s actions impact job requirements.

We always recommend you consult with your lawyer when conducting any screening practices. Still, by clarifying the impetus for your decisions, you’re on track to helping your company attract and retain talent that furthers your mission and values, while remaining in step with the law.

Post Bonus: To learn more about social media and online screening, download our eBook on the legality of social media screening. Background screening litigation specialist Pam Devata discusses everything from what information can be used in background screenings to how you can ensure maximum possible accuracy when screening. Get your eBook here.

Disclaimer: Please note that the materials available in this post are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.

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