When it comes to background screening, drug testing and employment verification, human resource professionals and employment attorneys must keep pace with ever-changing rules, regulations, laws and more. What are the trends facing the industry for 2016, and what will have the greatest impact on the practice of human resources and employment law?
Here are Hire Image’s top 10 predictions for what’s still “hot” from last year and why, and what’s coming down the pike that demands attention and focus for 2016:
- “Ban the Box” initiatives will turn into “Fair Chance” policies
“Ban the Box” intends to create a situation where employers are required to wait until later in the hiring process before asking about an applicant’s criminal history. By removing the question about conviction history from the application, employers are unable to eliminate an applicant simply based on his or her answer and would be more likely to base the hiring decision on the applicant’s qualifications. As the movement has grown, so have its goals and requirements. Rather than simply eliminating the criminal conviction checkbox, many of the laws now go further and require that an employer wait until after a conditional offer of employment to inquire about criminal history, limit the type or age of conviction records they consider, as well as conduct an individualized assessment of the applicant’s criminal past before choosing to rescind that offer. To date, seven states and the District of Columbia have implemented laws that impact private employers, and several major cities and counties have also taken up the cause within their own jurisdictions. San Francisco and New York City have adopted more comprehensive Fair Chance policies which proponents claim support a broader agenda of community economic development, criminal justice reform and civil rights protection. New “Ban the Box” laws introduced in 2016 will all likely include Fair Chance components. It is also expected that many of the current laws will be updated to incorporate Fair Chance components, as Philadelphia has chosen to do. Employers will need to understand and comply with not only the requirements under the Fair Credit Reporting Act (FCRA) when it comes to background checks, but also the added requirements of those laws in the states, counties, or cities in which they do business.
Click here for a list of all current “Ban the Box” laws.
From guest writer, Brian Lamoureux, Esq., Partner at Pannone Lopes Devereaux & West LLC
“Hi, Brian – Please see this tweet sent by someone we were just about to hire. I can comfortably state that we do not want to hire him because of this vulgar tweet. Can we decide not to hire him because of this?”
This is an actual question one of my clients emailed me recently. After confirming that the tweet did not suggest that the potential employee was part of a protected class, I told my client that they were free to pass this person over. This was not a very difficult decision. But, it shows that human resource professionals are struggling with how social media can (and should) be used to find, screen, and discipline employees.
In 2013, almost 40% of employers used social media to screen candidates, according to a CareerBuilder study. Interestingly, 43% of those employers found information on social media that disqualified candidates, whereas only 19% found information that influenced them to hire a candidate. This disparity in favor of disqualifying candidates suggests that employers and potential employees need to understand that social media poses risks for each of them.
For employees, the risks are obvious. We have all seen social media posts containing poor grammar, showing poor judgment, lack of discretion, laziness, or even criminal activity. Given that employers are using social media information more often to rule candidates “out” than to rule them “in,” candidates need to proceed extra cautiously when behaving online.
For employers, the risks are primarily legal in nature. Using social media to screen candidates can unintentionally provide information to employers about candidates that the employers could not get by asking the candidates. For example, a picture of a woman on Facebook with triplets in her arms suggests (but does not prove, of course) that she’s a mom with her hands full, and therefore perhaps unwilling to put in long hours. Or, a picture of a man in a wheelchair could suggest (but, again, does not prove) that he is disabled and would need reasonable but expensive accommodations. If the hiring manager sees these pictures and decides not to interview or hire either of these candidates, there is a risk that the candidates could make a discrimination claim.
Thus far in my practice, these issues have been largely theoretical, and none of my clients has faced a discrimination claim based upon these facts. Rather, most of my clients are struggling with how to handle information and pictures they find on social media that reflect legal, but objectionable, behavior. Generally, employers are free to consider any publicly available information about a candidate, so long as the information isn’t protected under discrimination laws or otherwise protected as legal, off-duty conduct.
By now, you are probably familiar with the oft-repeated advice on how to use social media to screen candidates, such as using a third-party screener, reviewing all candidates or none of the candidates (i.e., not cherry-picking, etc.). If you’re not familiar with these best practices, there are a lot of good articles online. I’d like to use the remainder of this article to introduce you to some new issues and concerns.
What do I mean by a “Brave Future World?” For years we have been dropping little social media “crumbs” about ourselves based upon things we’ve “liked,” places we’ve checked into, events for which we RSVP’d, pictures we’ve posted, Twitter debates we’ve engaged in, etc. These data points – standing by themselves – don’t tell much about us. But, when they are put together as a mosaic using complex algorithms, very accurate pictures can be painted about our health, sexual preferences, eating habits, social preferences, and financial security.
For example, if I never “check-in” to a gym, regularly “check-in” to fast food restaurants, “like” donut shops, bakeries, and breweries, can you reasonably assume that I’m someone who eats a lot of junk food, likes beer and doesn’t exercise? Perhaps. Wouldn’t a health insurer or potential employer (who self-funds their employees’ health insurance) want to know this information when setting premiums? Definitely.
Suppose that I often “check-in” to casinos and exclaim every two weeks on Facebook that “Thank goodness it’s payday!” Doesn’t this suggest that I might have some financial issues? If you’re looking to hire me to be in charge of a cash operation or in a sensitive financial position, this concern isn’t far-fetched. If I told you 20 years ago that your credit score would impact your car insurance premium, you wouldn’t believe it. But, we all know now that our credit scores are a very good predictor of our insurance risk.
It shouldn’t surprise you that some very smart people are honing algorithms to put together these data points in the hopes of marketing it to employers, schools, health insurers, and banks. Based upon my research and analysis of social media, “big data,” privacy, and how our information is being used, I predict that social media data about all of us will start to gain protection under the law (much like our medical information under HIPAA). I expect states and perhaps Congress to begin passing laws prohibiting discrimination on pricing for healthcare, lending, and insurance based on social media data. However, until that protection is put in place, all of us should pause and be mindful of the personal data we’re putting out on social media and how employers are using it to make decisions.
Brian Lamoureux, Esq. is a Partner at Pannone Lopes Devereaux & West LLC in Providence, Rhode Island. He focuses on employment law, commercial litigation and disputes, social media law, and creditors’ rights. He is also an Adjunct Assistant Professor of Business Law at Providence College, where he also teaches a graduate-level course he designed called “Digital and Social Media in the Business Environment.” He can be reached at 401-824-5100, email@example.com, or on Twitter @brianattorney.
In our technologically advanced world, it is not surprising that employers take advantage of social media to recruit and hire potential employees. Many employers have turned to social media as a way to screen and monitor the behavior of both potential and current employees. From gaining insight into the type of person a candidate is, to determining if they present themselves in a professional manner, employers can gauge if the candidate is a good fit for the company. But just how practical and useful is this information, and what are the legal implications?
One practical application for using social media is for recruiting. A 2011 study done by the Society for Human Resource Management (SHRM) found that 76% of companies use or plan on using social media sites for recruiting. Many individuals seeking employment use social media platforms to make themselves known to employers, and also to research potential employers. When social media is used in this way, it can be a highly valuable tool. However, risk occurs when employers use these outlets to screen candidates.
When information found on social media sites is used to screen or eliminate a candidate, risks of liability, discrimination claims, and non-compliance with regulations can arise. Many view the practice as being too invasive and problematic, considering the potential for discrimination and negligent hiring charges. According to the National Conference of State Legislators, in the past two years, 14 states have passed legislation preventing employers, schools or both from demanding access to social media. Twenty-eight states without laws in place are considering similar legislation. Not only can legal issues arise, but the practice is frequently perceived as an invasion of privacy and may turn off a well-qualified applicant.
Many companies have employment policies in place preventing recruiters or hiring personnel from learning potentially discriminatory information about prospective job candidates. Opportunities for discrimination claims can emerge when an employer or recruiter views an individual’s social media pages, exposing them to a great deal of information which may contradict non-discriminatory procedures. Through viewing social media sites, an employer can learn information about a candidate’s protected class that would not have otherwise been revealed. An employer could also learn other information about a candidate that may affect the hiring decision; for example, if the candidate participated in offensive but lawful off-duty conduct. If a lawsuit should arise and it is discovered that negative influencing information was learned during the hiring process, it can increase the possibility of potential liability. Negligent hiring and negligent retention lawsuits in relation to information from social media are not yet particularly common, but have the potential to be.
On the other hand, there are also instances when using social media is highly beneficial to employers who have just hired a new candidate. In 2009, Cisco Systems offered a woman named Connor Riley a position at their company. Not soon after, Riley posted this tweet:
“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.”
This public tweet was discovered on Twitter by a Cisco associate who offered to pass the message along to Riley’s hiring manager. Cisco, unsurprisingly, rescinded their offer of employment. Riley’s self-described “crass-sounding” tweet made her appear ungrateful and unenthusiastic about the job offer. Being a loyal and eager employee is something most employers look for and value in a candidate, and learning this information was useful to Cisco. In this situation, social media was able to shed a bit of light on the candidate’s character.
Utilizing social media for various reasons in hiring decisions is a very slippery slope. One of the best ways to avoid possible legal disputes is to rely on professional background screening companies, such as Hire Image, to manage your screening needs and who are aware of compliance requirements, helping you avoid unpleasant legal repercussions.
There are a number of pros and cons for using social media as a screening/hiring tool, and the issue as a whole is a bit of a gray area. It is important that hiring personnel tread carefully when doing so, as this is a complicated issue. Employers who wish to use social media to screen must be aware of the rights of applicants to ensure they stay in compliance with the law.