The advancement of social media is profoundly changing the way companies conduct background checks and screen applicants to confirm their credentials. But while social media screening is on the rise, many employers refrain from the practice out of fear of its legal implications, including the risk of discrimination lawsuits. Although the law on social media use in employment is still evolving, some existing legislation and cases provide guidance. Employers must be cognizant of the legal risks and tailor their practices accordingly.
Benefits and Risks of Social Media Screening
Statistics show that employers are successfully using social media screening to eliminate unqualified candidates. According to a 2016 survey conducted by the Society for Human Resource Management, 43 percent of organizations used social media profiles or online search engines to screen applicants, and more than one-third of those screeners indicated they had disqualified a job candidate in the past year because of “concerning information” discovered on a public social media profile or through an online search, including illegal activities or discrepancies with job applications.
A notable drawback to the use of social media in pre-employment screening, however, is the exposure to protected information under state and federal anti-discrimination laws, such as an applicant’s race, religion, national origin, age, pregnancy and/or marital status, and disability, and in some jurisdictions, sexual orientation and gender expression or identity. In viewing an applicant’s social media profile, an employer might ascertain some of these characteristics, and such knowledge could open the employer to claims that it unlawfully considered the characteristics in its hiring decision.
Employers can also benefit from social media screening by monitoring the activities of current employees to ensure they are not involved in activities harmful to the employer, such as posting disparaging comments or disclosing confidential information. Some cases indicate that an employer may even have a duty to monitor an employee’s social media and take action where the employer is on notice that unlawful activity may be occurring. Employers that have failed to address illegal or tortious behavior of their employees have been faced with claims of workplace harassment, negligent hiring, and defamation.
Existing Legislation Impacting Social Media Screening
Many states have enacted legislation to prevent employers from requesting access to employees’ passwords for personal social media accounts to either obtain or maintain a job. And more legislation may be on the horizon, as the Uniform Law Commission recently adopted the Uniform Employee and Student Online Privacy Protection Act, which addresses access to employee and student social media and online accounts by employers and post-secondary schools. The Act is now eligible for consideration and enactment by the states.
Additionally, employers who use an outside entity to perform background checks must comply with the Fair Credit Reporting Act, which requires employers to obtain a candidate’s written permission before an agency may perform a background check for employment purposes.
How to Conduct Social Media Screening
Considering that more employees are actively communicating via social media networks, the use of social media in pre-employment screening is likely an enduring workplace trend. To maximize benefits and minimize risks, employers should consider the following when using social media in the hiring process.
- Conduct an in-person interview before researching an applicant’s social media profiles. Interviewing applicants in-person will likely allow you to glean their membership in protected groups, thereby reducing the risk of asking improper questions based on information obtained from social media profiles.
- Following the interview, hire a third party, like Critical Research, Inc., to perform background checks and searches of public information on social networking websites. Outsourcing this task enables the third party to redact any discriminatory and protected class information that is not learned during the in-person interview, thereby allowing the employer to focus only on the social media content related to the applicant’s educational and work-related background.
- To ensure compliance with the FCRA, if a consumer reporting agency is used, be sure to notify applicants prior to the investigation that a background investigation, including a search of social media sites, will occur, and obtain their written authorizations.
- Do not ask for passwords for personal social media accounts as a condition of obtaining or maintaining a job. Instead, examine only publicly available content.
Author Bio: Tylar is an Investigative Report Writer for Smith & Carson, Inc., where she specializes in conducting research and preparing reports for complex products liability and wrongful death litigation. Prior to joining Smith & Carson, Tylar completed a judicial clerkship with the western division of the Massachusetts Probate and Family Court. Tylar graduated from the University of Massachusetts-Amherst with a degree in English and received her law degree from Western New England University School of Law. While in law school, she served as a note editor for the Western New England Law Review. She is a licensed private investigator in the state of Georgia.