Special Report: Legal Precautions Concerning Social Media in the Hiring Process for Health Care Staffing
By Lester Rosen, President of Employment Screening Resources (ESR)
Health Care Staffing and the Internet
No discussion on recruiting in the health care staffing industry these days is complete without an in-depth analysis of how the Internet is being used to source candidates and uncover the most talented health care professionals. Those working in health care staffing, in particular, need to be sensitive to the implications when searching social media sites for information on potential hires even though social media has completely changed both job recruitment and finding the best health care talent in the 21st century.
Health care staffing has become focused with an almost laser-like intensity on how to best make use of social networking sites such as Facebook, blogs, micro-blogging on Twitter, online videos, and business connection sites such LinkedIn. However, what is sometimes overlooked in the mad rush to use the Internet to recruit health care talent is one question that needs to be asked first: What are the legal risks for health care staffing in using the Internet for recruiting and what legal precautions best manage those risks?
Discrimination Allegations
Allegation of discrimination is one critical area where health care staffing can find themselves in hot water when utilizing social networking sites such as Facebook. They may be accused of disregarding candidates who are members of protected classes by passing over the online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religious affiliation, marital status, or medical condition. All of those are things that may be revealed by a Facebook search. There may even be photos showing a physical condition that is protected by the Americans with Disabilities Act (ADA) or showing someone wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as “Too Much Information” or TMI. The problem is that once health care recruiters are aware that an individual is a member of a protected group, it is difficult for them to claim that they can “un-ring the bell” and forget they ever saw it.
It could be argued that if a passive candidate is passed over because of discriminatory criteria revealed on a social network site, how can they be harmed since they did not even know they were disregarded and are none the wiser? The problem with that approach is three-fold. First, discrimination and civil rights laws would likely still apply, even in recruiting passive candidates. Secondly, there are few secrets in the world. If a firm is using discriminatory criteria, a member of the recruiting team who feels uncomfortable about such a practice may well say something – either publicly on the Internet, or within the organization. Third, it can be argued that discriminatory criteria were being used if it turns out that the entire workforce happens to be homogeneous and does not include members of protected classes.
Of course, the analysis is complicated by the fact that the aggrieved individual may have placed the information on the Internet themselves. However, it would be challenging to suggest that a person somehow consented to discrimination by placing material on the web that was then used illegally by health care recruiters. Until Courts rule on these issues, health care staffing can only try to apply established legal concepts to their online recruiting efforts.
Protection from Discrimination Allegations
The issue for health care staffing is how to protect themselves from allegations of discrimination if no further action is taken after a recruiter discovers on the Internet that a person is a member of a protected class. For health care recruiters that want to use social network sites to screen a current candidate, the safest path for the use of social network sites is to obtain consent, and to only search once there has been a conditional job offer. This helps ensure that impermissible information is not considered before health care recruiters evaluate an applicant using permissible tools, such as interviews, job-related employment tests, references from supervisors, and a background check. At that point, the reason for searching social networking sites would be to ensure that there is nothing that would eliminate the person for employment in health care, such as saying negative things about a fellow health care practitioner or health care provider, or if the applicant engaged in behavior that would damage, hurt business interests, or be inconsistent with the needs of the hospital or health care provider.
For health care recruiters looking for passive candidates, however, that approach does not apply. By definition, the recruiter does not have consent, since sourcing is at the start of the hiring process.
Sourcing Stage Considerations
Health care recruiters in the sourcing stage may want to consider the following:
* Health care recruiters should ensure each position has a detailed job description written for that specific position that clearly lays out the essential functions of the job and the Knowledge, Skills and Abilities (KSA) required for the position.
* Health care recruiters should have a clear internal policy that Internet sourcing is not being used in violation of federal and state discrimination laws and that only factors that are a valid predictor of job performance will be considered, taking into account the job description and the KSA require for the job.
* Health care recruiters should have documented training on legal recruiting techniques. The training should include clear information on what would constitute a discriminatory practice.
* Health care recruiters should have a clear procedure that outlines key words, criteria, and methodology for sourcing, so recruiters can demonstrate that they are searching for objective requirements to be considered as part developing the candidate pool. Even better is if the criteria being used can be measured or have a metric attached.
* If someone meets the objective requirements but is not placed in the pool of potential candidates for other reasons, health care recruiters may want to note why the exception is being made. For example, if the social networking website demonstrated behavior inconsistent with business interests of a health care practice, that should be noted.
Computer Twins, Cyber Slamming, Credibility, and Privacy
Of course, social networking sites need to be taken with a grain of salt. Health care recruiters need to be careful that the site they are looking at actually refers to the applicant. Many Americans have online computer twins, people with similar names. Another problem is “cyber slamming,” online smearing usually done anonymously, such as derogatory comments on websites or even setting up a fake website that does not truly belong to the applicant. Yet another issue for health care staffing is whether the statements made are even true and credible, keeping in mind that the idea behind these sites is friends talking to friends, and users of these sites have been known to embellish.
Another problem yet to be fully explored by the courts is privacy. Contrary to popular opinion, everything online is not necessarily fair game. Certainly, if a person has not adjusted the privacy setting so that his or her social network site is easily available from an Internet search, that person may have a more difficult time arguing that there is a reasonable expectation of privacy. However, the terms of use for many social network sites prohibit commercial use and many users literally believe that their social network site is exactly that, a place to freely socialize. The argument would be that in their circles, it is the community norm, and a generally accepted attitude, that Facebook pages are off limits to unwelcome intruders, even if the door is left wide open. Another issue is legal off-duty conduct, as a number of states protect workers engaged in legal off-duty conduct.
Until the courts sort these issues out, one thing does seem fairly certain – if health care recruiters use subterfuge to gain access, such as by creating a fake online identity just to penetrate a social network site, then the privacy line has probably been crossed.
The Bottom Line: Proceed With Caution
The bottom line, as always, for health care recruitment and staffing when using the Internet for employment related matters is to proceed with caution. There has yet to be clear laws or court cases that set forth steadfast legal guidelines in this area. However, even though searches of social media sites carry inherent challenges for health care staffing, such searches may also be something that needs to be done as part of due diligence. In the meantime, health care recruiters may want to approach the Internet, again, with a good deal of caution before assuming that everything is fair game in the online pursuit of candidates for the health care industry.
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Attorney Lester Rosen is President of Employment Screening Resources (ESR) and author of “The Safe Hiring Manual.” ESR is accredited by the National Association of Professional Background Screeners (NAPBS). Visit ESR at http://www.ESRcheck.com. |