Thursday, August 14, 2014

High School Football Players (and others) Tweet with Caution

I recently read an article about how college football recruiters are using twitter to screen out potential players for their teams. It’s becoming a somewhat common practice for recruiters to monitor the twitter accounts of high school players that they are scouting to see whether any red flags are raised. Based on some of the inappropriate tweets, colleges have decided not to pursue particular players and, in at least one instance, have even withdrawn a scholarship offer. Some of these college coaches are encouraging high school coaches to teach players that they need to be careful about what they post on social media. It seems to me that this is education needed by lots of people, not just high school athletes. I still find myself shocked from time to time about what people will post on social media sites.

So should company recruiters adopt the football recruiters’ approach and routinely review various social media postings before making hires? Like many things in the human resource/employment law realm, there really isn’t a clear cut answer. 
On one-hand, there’s risk in not doing your due diligence before hiring a candidate. What if a quick search would have revealed that the potential hire was posting confidential information about his or her current employer or about a customer? Or, what if the individual was posting racists comments? You might think twice about making that hire. On the other hand, what if you stumble across some protected class information? For example, what if you see a post about a recent medical diagnosis or that the individual is pregnant? If you decide not to hire the individual (for other lawful reasons, of course) and that individual challenges the decision, you’ve lost your ability to claim that you had no knowledge of the protected class status. 

I encourage clients to be thoughtful and deliberate about their approach to using social media and other technology related sources to screen out candidates. If you’re going to use social media, you should adopt a standard approach, whether that is for all positions or a limited subset, and apply it consistently. By doing so, your company will limit a candidate’s ability to argue that you chose to engage in social media sleuthing for discriminatory reasons. You should also consider limiting who conducts and has access to the information gathered through the social media sleuthing. Consider, at least initially, excluding the decision-makers from that process. In essence, social media sleuthing is really just another form of background checks. Assuming your company is handling those the correct way, consider adopting very similar procedures for social media sleuthing. One additional word of caution, though - accessing information that isn’t readily available to the public and by some means that is less than transparent (i.e. looking over the shoulder of an employee who is “friends” with the applicant to access information) is generally not advisable. 
What approach does your company take as it balances the pros and cons to accessing this information? I’d love to hear thoughts and ideas, so please comment below. 

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