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Social Media Screening

Question: Should we conduct social media screenings on our new hires?

Response & Analysis:

In recent years, many employers have been enticed by the prospect of using social media searches as part of their applicant screening process in order to learn more about prospective employees and to avoid costly bad hires. However, while you are not legally prevented from using information found on social media sites as part of your hiring processes, there are major risks in making hiring or other employment decisions using such information, and you should tread cautiously.

The first major risk is that an applicant’s digital footprint can reveal protected characteristics, and you need to be aware of the employment law implications of using such information. In addition to information that may not be relevant to job performance, social media searches may reveal information about an applicant’s private life–age, religion, sexual orientation, disability, national origin and race–that you can’t ask about in an interview. By viewing a candidate’s blogs, posts, photos and videos, you open yourself up to information that legally cannot be used in the decision-making process. The dilemma is that such information cannot be “unseen,” and you may find yourself in the difficult situation of having to prove that your decision not to hire someone was not based on discriminatory information you found via a social media search.

In addition to the possibility of learning “protected” information, social media information may not be reliable and is often very difficult to verify—and when conducting background screening for employment purposes, accuracy of information is paramount for both employer and employee. This sort of search process also lacks the applicant protections required under the Fair Credit Reporting Act (“FCRA”). Without a pre-adverse or dispute process, applicants have no forum to correct inaccurate or false information or explain information that may be construed out of context.

In 2011, the Fair Trade Commission issued a staff opinion letter emphasizing that FCRA “compliance obligations apply equally” in this context, including the requirement that you have to take reasonable steps to ensure the maximum possible accuracy of the information reported and that it relates to the correct person. While there are companies that claim to conduct social media background searches in compliance with the FCRA, the reality is that they would then have to exclude all information not legally allowable for hiring. What is left is of questionable actual use and practical value, and an applicant must still be provided with pre-adverse/adverse action notices and a dispute process. If a candidate does then dispute that a photograph, posting or blog is attributable to him or her, or argues that it has been falsified or an account hacked, you’ll still find yourself in the same dilemma of not being able to “unsee” the information and again open to claims.

If, however, you still decide to supplement traditional screening processes with social media searches, carefully consider the legal risks of such an approach and implement the following best practices:
  • Don’t making hiring, retention or other employment decisions based on membership in a protected class revealed through social media;
  • Use the same protocols for screening no matter the applicant’s race, gender or other protected class status in order to avoid disparate treatment liability;
  • Make hiring, retention or other employment decisions using accurate and verified information only;
  • Don’t seek access to password-protected social media accounts;
  • Don’t discriminate against employees and applicants based on activity protected under the National Labor Relations Act revealed through social media;
  • Comply with the FCRA and its state equivalent, if applicable, even if conducting searches in-house; and
  • Ensure that you are complying with the “terms of use” policies of social media websites.

All Rights Reserved © 2017 Truescreen, Inc.
This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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