Social Media Screening
Service : Compliance Services
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.
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.
- 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
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