May

The latest in a recent spate of high-profile news stories involving celebrities and their social media activities, has highlighted the need for all employers to address, or at least be aware of, employee’s past and current social media usage. It is essential that you make sure a policy is in place to help formulate decisions, where necessary.  While the vast majority of people would not condone the content of the racist and homophobic Tweets behind the controversy, there is a noticeable undertone of understanding around the circumstances as to how some of the posts came into circulation. 

The BBC’s firing of radio DJ Danny Baker in response to the public’s backlash caused by his ‘racist’ tweet is the latest example of how costly an ill-advised posting on a social media platform can be. Baker immediately deleted his “gag pic of the little fella in the posh outfit” as soon as he was made aware of the seemingly obvious connotations that he had presumably overlooked, but this kind of damage cannot be undone.

Social media Tweets, posted when she was a teenager and using racist language widely used in the hip-hop music she was listening to at the time, but utterly unacceptable in any other environment, cost 24-year old Shila Iqbal her highly-coveted role as an actress on British soap opera Emmerdale. Few would doubt Iqbal’s assertion that she would have instantly deleted those posts had she known that they were still in the public domain six years later and would never use that language now as a professional and adult actress.

Israel Folau is undoubtedly one of the world’s greatest rugby players and also a devout Christian.  Folau’s presumably well-intentioned Tweet urging people to turn to Jesus and to repent their Sins to avoid going to Hell, quoting three verses from the bible would have surely gone unnoticed had the picture accompanying the post not contained an image designed to shock. The ‘Warning’ poster listed homosexuals alongside drunks, adulterers, liars, fornicators, thieves, atheists and idolaters. Folau frequently uses social media to spread his religious beliefs, and some of his posts have led to intense debate over the years. With Folau now having been found guilty of committing a high-level code of conduct breach, this post looks set to cost him a multi-million-dollar contract and his rugby career, and will hopefully teach many millions of people around the world an incredibly valuable lesson.


Social Media Screening is not a new tool in the background screening arsenal. However, it is undoubtedly the most topical and fastest-growing service.  Many are not yet convinced about the importance or value of social media checks, but it is highly likely that they will become as widely accepted and adopted as criminal record checks and employment references over the next decade.  They have recently been recognised as being “good practice” by the FCA as part of annual checks on all staff.

A huge issue and challenge to overcome is that many HR professionals and prospective line managers are already conducting social media screening, but in many cases, this has damaging implications for employers.  While you may be having a quick look at someone’s profile to see if there are any positive signs or red flags, it is impossible to “un-see” something that may create unintentional bias. 

By using a third party to undertake the checks, you can ensure that the candidate’s sensitive personal information is protected; that applicant/employee consent is obtained; and that only employment-related business and reputational risks are identified and revealed, ready to help with your decision-making process alongside results of other background screening investigations.
 
And by having a Social Media Policy in place, you can set clear guidelines and expectations for both employees and applicants about how they conduct themselves online, regardless of whether they are posting on their personal accounts or acting on your behalf promoting your organisation. A Social Media Policy should not discourage activity, nor drive users to hide behind anonymous profiles, but encourage them to clean up any previous mistakes or indiscretions and act responsibly and professionally now that your organisation’s reputation is on the line.

See our Media and Entertainment industry page for further details and contact us to discuss how our Social Media Insight checks can improve your employment screening policies.
 

National trucking company JBS Carriers, Inc. will pay $250,000 and furnish other significant relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC's lawsuit, JBS Carriers contracted with a third party, ErgoMed Work Systems, Inc., to administer Pre-employment screening of applicants for truck driving jobs. The EEOC alleged that this process unlawfully screened out people with disabilities who were qualified for the truck driving jobs they sought. The screening subjected all applicants to a medical history questionnaire, a physical examination, and nine physical abilities tests. If an applicant failed any one of the tests or was prevented by ErgoMed from taking the tests based on information obtained from the questionnaire or during the physical examination, ErgoMed sent JBS Carriers a negative job recommendation. The lawsuit alleged that JBS Carriers then withdrew conditional job offers to applicants based on ErgoMed's recommendations.

For example, the EEOC alleged in its suit that one applicant, Cindy Divine, had over 30 years of commercial truck driving experience. After JBS Carriers offered her a job, Divine traveled to Greeley, Colo. to complete the screening. According to the EEOC's lawsuit, ErgoMed concluded that she had disqualifying issues with her shoulders, even though Divine told ErgoMed's examiner that she was only sore from carrying heavy luggage from the bus stop to her motel. ErgoMed prevented Divine from completing its physical tests and provided a negative recommendation to JBS Carriers, which then withdrew her job offer.

The Americans with Disabilities Act (ADA) prohibits employment discrimination based on disability and makes it illegal for employers to impose standards or criteria for job applicants that have the effect of discriminating based on disability or that screen out individuals with disabilities.

A decision by the Southern District of Iowa in Smith v. Mutual of Omaha Insurance Company has provided some hope for those seeking ways to defend against Fair Credit Reporting Act (FCRA) class action claims.

The plaintiff in the case claimed he did not obtain a position as an insurance agent based on his background check and that the company failed to comply with pre-adverse action requirements. The court, however, ruled in favor of the business, holding that FCRA requirements are not applied in the same way for independent contractors. In the plaintiff’s added Section 1681b(f) claim, however, the court ruled that language used in other documents such as the contract between the consumer reporting agency (CRA) and company may also be relevant to the overall FCRA compliance analysis.