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Risky Recruiting Business

A SHRM survey finds many companies that rely on social networking sites for recruiting eschew policies on social media use for this purpose. Experts say using social media in the recruiting process can be risky in and of itself, but failing to implement a formal policy puts the organization on even shakier ground.   

Wednesday, May 8, 2013
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A recent study from The Society for Human Resource Management finds a growing number of companies turning to social media for help in recruiting passive job candidates. The same study from the Alexandria, Va.-based HR management association found the number of employers using social networking sites to screen job candidates on the decline.

The latter is probably a good sign. Experts caution that uncovering information through social media sites can lead your organization down a slippery slope that ends in legal headaches.

The survey, which polled 651 SHRM members whose jobs encompass recruiting and staffing, saw 77 percent of respondents saying they use social networking sites to recruit candidates, a 21 percent increase from 2011, according to SHRM. Within that group, 87 percent said they use sites such as LinkedIn – the most popular site among respondents, followed by Facebook and Twitter -- to target candidates at the non-management salaried level, with 80 percent reporting the same in regard to director and manager-level positions.

Interestingly, 57 percent of companies that said they rely on social media for recruiting purposes have no policy -- either formal or informal -- on using social networking sites. Seventy-two percent do not plan to implement a formal policy within the next 12 months.

Those numbers aren't particularly surprising, "but only because there are many organizations that operate without putting in place a variety of policies they ought to have," says Peter Hughes, a Morristown, N.J.-based attorney with Ogletree, Deakins, Nash, Smoak & Stewart.

Organizations and their HR departments forego defining proper social media procedures at their own peril, however, he says.

"Employers should have policies if they are going to use social media in the recruitment process," says Hughes. "There are legal risks in using social media to identify and screen candidates. These legal risks are growing as more states regulate the process, and as courts are called upon to review these processes."

For example, Utah recently joined California, Illinois, Maryland and Michigan on the list of states that have passed social media privacy legislation that prohibits employers from asking employees and job applicants to provide login information for their personal Internet accounts. In April, New Mexico Gov. Susana Martinez signed a similar bill into law, although New Mexico's law only applies to job applicants, and does not mention current employees.

It's important to distinguish screening and recruiting candidates as "two distinct activities in the hiring process," says Alexander Alonso, vice president of research at SHRM.

"HR recruiters are using social networking sites to identify passive applicants or people who might not actively apply to their open positions, or to build their employer brand," says Alonso, noting that less than 20 percent of employers indicated they engage in using social media to screen job candidates.

Indeed, respondents to SHRM's survey did voice misgivings about the potential legal snafus associated with using social media to screen candidates. About three-quarters of respondents whose organizations do not use social networking sites to screen candidates said they fear potential legal issues or discovering information about individuals' protected characteristics.

Donald Schroeder, a Boston-based attorney with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, echoes those worries.

For example, "let's say you find out [through social media] about a person's sexual orientation or a potential disability," says Schroeder. "You wouldn't otherwise know that information, and a person [the company ultimately didn't hire] could come back and say, 'I know you looked at those sites, and you didn't hire me because of my protected status.' You're gaining knowledge [of a candidate] that you may not have necessarily wanted, and you're opened up to claims that somebody would not otherwise be able to pursue."

Possible legal issues aside, some participants in the SHRM study also expressed uncertainty over social media's practical utility in the screening process. Sixty-three percent of respondents who don't use social networking sites said they question how relevant information gleaned from social media would be to candidates' potential for success on the job.

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Given such concerns, Schroeder advises HR professionals to steer clear of social media to screen candidates, or turn to a third-party recruiting firm to do the job.

"I really think, in general, that HR should not be employing social media websites as a means of screening," he says. "I don't think it's a best practice for HR departments to employ those methods, and HR could be better served by using that time to check references, or find out about prior work experience or a [candidate's] ability to work in a given environment."

HR leaders at organizations that do seek candidate information through social media avenues "should determine in advance in what scenarios they will do such a check, and what types of information they are looking for in such a screening," adds Elizabeth Owens Bille, SHRM's associate general counsel.

"Even if the organization has no plans to adopt a policy that governs social media use companywide," she continues, "it is advisable for the HR department to adopt its own policy or procedures regarding whether social media sites will be used to screen job candidates -- and stick to that policy.

For example, she says, the policy could mandate that the company check publicly available pages only when the candidate offers up the social media site on their resume, or if the individual is applying for a social media-related position. In addition, HR must specify that those doing the screening not ask applicants for log-in or password information in order to access private pages, and be aware of state laws regarding this practice.

Ultimately, recruiters and employers may -- in such limited circumstances -- gain useful insight into a candidate through social networking sites, but must also look beyond social media to determine the true value of this information, says Owens Bille.

"Many organizations may find it beneficial to verify the information by contacting previous employers or speaking to the applicant [directly] about what was found, so that the person may explain the situation."

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