Should You Be Performing Facebook Background Checks?

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performing background checks Should You Be Performing Facebook Background Checks?

When it comes to recruiting potential employees, social media has become a popular resource for finding candidates that will fit the required job skills and become a top-performing employee. But is using information from social media profiles a legal and reliable part of the recruiting process?

As reported in the 2013 Hiring Trends and Practice Survey, roughly 8% of HR specialists are using social media to pre-interview a candidate. Another 8% are also using social media for the post-offer and post-interview of a potential candidate.
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Women & Leadership: How to Develop More Female Leaders

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Women & Leadership: How to Develop More Female Leaders

Not only have gender-related leadership conversations emerged lately in the media, the attraction, retention, and development of talented women has become an important issue for many employers in recent years. Organizations are increasingly recognizing the need to develop and support more female leaders in their workplace.

"We seem to be getting more and more requests lately for training and coaching programs that address the specific needs of women in the workplace," says Chris Kutsko, Director of Learning & Development at ERC. She explains, "Subjects like Assertiveness, Personal Branding, Empowerment, and Leadership for Women are topics that are getting more attention. In addition, C-Level executives are making a more conscious effort to equip their female leaders with the tools, training, and support to help them achieve higher levels within the organization."

Developing more female leaders sometimes raises challenges and questions for organizations, in terms of how they can support, train, and develop them, as their needs are often different from male leaders. Here are some suggestions.
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FMLA & Facebook: 6 New Lessons for Employers

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FMLA & Facebook: 6 New Lessons for Employers

Increasingly, Facebook and other social media postings are entering the courtroom as employers use them as evidence for taking adverse action against employees. Here are two cases regarding Facebook and the Family Medical Leave Act (FMLA) which serve as models for employers on this issue and offer six (6) important lessons.

Case Law Overview

Case #1

In Lineberry v. Detroit Medical Center, a federal district court ruled that an employer is entitled to fire an employee if they have an "honest belief" that he or she is abusing FMLA leave.

In the case, Carol Lineberry was employed by Detroit Medical Center as a Registered Nurse. She injured herself on-the-job when moving stretchers, was treated by her physician, and was told not to return to work. As a result, Lineberry received approved FMLA leave from her employer.

While on leave, Lineberry took a vacation to Mexico. The trip was approved by her physician who stated that the vacation would not conflict with her recovery nor would be as physically demanding as performing her job duties. During her vacation, however, Lineberry posted photos on Facebook suggesting that she misrepresented her need for FMLA. Her coworkers saw these postings and complained to Lineberry's supervisor.

When questioned, Lineberry informed her supervisor that she used a wheelchair during her travel, however during a subsequent disciplinary meeting, when reminded that airports have cameras, admitted to lying about using a wheelchair. As a result, Detroit Medical Center terminated Lineberry for dishonesty and falsifying information. Lineberry sued the hospital, alleging that it interfered with her FMLA rights and retaliated against her.

The court considered Lineberry's Facebook postings and dishonesty about the use of a wheelchair as facts which led Detroit Medical Center to reasonably believe that she had misused FMLA leave.

Case #2

A similar case, Jaszczyszyn v. Advantage Health Physician Network, involved Sara Jaszczyszyn, a customer service representative employed at Advantage Health Physician Network. Sara requested and obtained the appropriate medical certification for intermittent FMLA leave as a result of a car accident.

After receiving certification, Sara was absent for a continuous and open-ended length of time. While on FMLA leave, Sara posted pictures of herself at a festival, socializing and enjoying time with friends. Her coworkers viewed these pictures and complained to their boss. Sara was eventually terminated and filed a retaliation claim against Advantage Health Physician Network.

Sara's claim was dismissed by court, primarily because the organization was able to show that it had an honest belief that she was engaging in fraud and relied on facts in its decision to terminate her. Also, the organization conducted a complete and thorough investigation of the issue and inquired about the discrepancy between her claim and Facebook photos.

Employer Takeaways

These two cases have some important implications for employers in terms of managing social media postings and FMLA leave, specifically:

  1. Social media postings may be legitimate evidence, coupled with other relevant facts and evidence from many different sources, to aid in an investigation and substantiate that an employee is abusing or misusing FMLA leave.
  2. Coworker complaints or reports about behavior on Facebook and other social media websites can be taken seriously and may prompt further investigation.
  3. Employers are permitted to properly investigate an employee's FMLA leave if they suspect that an employee is violating the terms of their leave.
  4. It's important to follow your disciplinary policy and procedure. These organizations remained compliant and consistent with their disciplinary policies and procedures, and took steps to obtain the appropriate information prior to terminating the employees.
  5. Organizations should obtain the appropriate information about an employee's medical restrictions under FMLA before taking adverse action on an employee.
  6. Employers should focus on responding to complaints about Facebook and other social media behavior, rather than routinely "spying" on employees' Facebook profiles and social media behavior.

There will undoubtedly be much more case law to glean insights from as Facebook and other social media postings make their way into the courtroom. As these cases unfold, employers should use them as models and lessons for how to manage FMLA and other employment laws.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

Additional Resources

FMLA Administration & Services: ERC's Preferred Partner, CareWorks, provides ERC members with discounts on services related to day to day management, tracking, and overall administration of FMLA. CareWorks' approach is outcome-based, streamlined, and cost-effective, and ensures that claims are handled consistently and in compliance with state and federal laws. 

Employment Law Fundamentals: This seminar is designed to provide managers and supervisors with an overview of relevant employment law considerations and to support a proactive, positive work environment. Presented in an interactive style, this seminar can be customized to specific topic areas desired by the employer.

ERC Preferred Partner CareWorks provides Absence Management and FMLA Administration. ERC Members save 5% off per EE per month fee or a $500 discount off Initial Set-up Fee

Business Related Social Media Use on the Rise

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Despite a strong focus over the years on the types of policies and restrictions being placed on employee’s social media use in the workplace, an equally important story regarding the growing use of social media among employer’s for business related purposes  is also emerging.

This change can be seen through a simple comparison of the results of ERC’s Social Media in the Workplace surveys over time. First conducted in 2010, employers indicated that the primary obstacle preventing their organization from actively engaging in social media use was “a lack of knowledge or expertise in using [social media] tools”, Facebook was ranked fourth among the most common social networking sites used by employers for a small list of business related purposes, and responsibilities related to social media fell to HR and Recruitment type positions.
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Facebook Announces Social Jobs App

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In 2012 Facebook, in cooperation with the U.S. Department of Labor and several other organizations announced the Social Jobs Partnership, a new social media-based job search tool. The Social Jobs Partnership app is a centralized database of job opportunities pulled from a number of outside job boards. At the time of launch, there were about 1.7 million jobs hosted through the app.

The Social Jobs Partnership is an effort to leverage the power and reach of social media to connect job-seekers with relevant jobs. If successful, Facebook would become a major competitor to LinkedIn in the social-recruiting arena.
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4 Reasons to Not Use Facebook for Hiring

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The 2012 controversy about employers screening job candidates by asking for their Facebook passwords has many employers wondering: should social media and online information be used in the hiring process and to what extent?

Most recruiting experts agree that social media can be used to effectively source and identify great talent. In fact, there is a good bit of evidence which shows that social media is a successful sourcing strategy for finding talent, especially passive candidates. Social media is quickly replacing other traditional recruitment methods such as postings and advertisements.

The main issue with social media is not in using it to find and source talent when recruiting, but rather when social media platforms like Facebook and other online information are used to assess and evaluate job candidates. While the goal should always be to eliminate the risk of a bad hire and hire a top performer, here are a few important reasons why using social media and other online information to evaluate job candidates poses problems.

1. There is limited research support for social media as a selection practice.

There is not enough conclusive and research-based evidence that supports social media as a predictor of future job performance and fit or as an effective hiring method. Though a 2012 study published in the Journal of Applied Social Psychology found a strong correlation between ratings of Facebook profiles and actual performance ratings of employees, this research must be replicated in order to make a stronger case for social media usage in the hiring and selection process.

2. Social media is not yet considered a valid or reliable hiring practice.

All hiring assessments and evaluation techniques should be valid and reliable and social media has yet to be tested against the reliability and validity standards that other hiring methods have endured, such as validated ability and personality assessments, structured or behavioral interviews, and work samples. As a result, it's unclear as to whether social media is a sound hiring practice.

3. Hiring based on information attained via social media poses legal concerns.

Use of social media for selection also poses legal concerns because social networking sites contain so much information that employers are prohibited from using to make employment decisions. For example, social media can expose an individual's race, gender, age, and national origin through pictures, postings, and biographical information. These characteristics are protected from discrimination under law.

Additionally, the courts have yet to clarify their stance on the usage of social media for selection. Until more case law offers guidance on the issue, it will be unclear as to whether social media is an appropriate and legal selection practice.

4. Using social media can lead to decisions based on irrelevant hiring criteria.

A final issue with using social media in the hiring and selection process is that it may not provide the necessary information to evaluate candidates objectively and consistently. Social media often contains a great deal of personal and irrelevant information that causes employers to make judgments about individuals, but not necessarily based on actual hiring criteria (skills, qualifications, experiences, culture fit, etc.).

For example, a posting on Facebook by a job candidate has little relevance to whether an employee can actually do the requirements of the job. Employers can use this information to screen out hires even when it is not job-related. When employers make decisions about candidates based on criteria that is not job-related or based on job requirements, they are making biased selection decisions.

Also note that the three most common reasons new-hires fail are poor culture or personality fit, poor job fit or an inability to do the work, and lack of interest or motivation to do the job. Social media tells employers very little about candidates in these areas.

In conclusion, your organization should think twice before "googling" your next job candidate or asking them for their Facebook password to browse their profile. Not only do these practices expose your organization to legal risks, but they may ultimately not be effective in helping you select great talent. Our advice: stick to tried and true selection practices to maximize your probability of acquiring a great hire. 

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

Additional Resources

Trends in Recruiting
This workshop covers topics vital to recruiting such as leveraging social media, sourcing diverse talent, evaluating candidates, and developing metrics to help your organization gain success in the recruiting process.

Selection Assessments
ERC’s assessment services, which use online and credible instruments, help minimize the uncertainty in employee selection by evaluating the skills, abilities, style, and career goals of job candidates in relation to your job requirements. Our services also include professional interpretation and feedback from our Management Psychologist, Don Kitson.

Project Assistance
ERC offers a broad range of HR consulting services and has expertise in developing selection systems, recruiting, and developing job descriptions. For more information about these services, please contact consulting@ercnet.org.

Save on Background Screening, Job Posting, Recruitment Services and More!
ERC members save money with our Preferred Partner Network. Click here for details.

Over a Third of Local Employers Allow Social Media Use at Work

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According to the results of the 2011-2012 ERC Policies & Benefits Survey, more than a third of local employers allow at least some groups of employees to access social media sites such as Facebook or LinkedIn during regular work hours.

These results may suggest that many employers still don’t have their arms around the impact of social media in the workplace. With the potential risks of liability and the negative impact these sites can have on workplace productivity, it may surprise some to see that so many employers allow employees to access these sites during the workday.

However, the question did not refer specifically to employees accessing the sites on an employer’s network, meaning that employees may be able to access the sites via their own personal mobile phones and devices as well, which could explain why the percentages could appear higher than some might expect.

Additional Resources

Visit our ERC Survey Page to access more information on our conducted surveys.