There is quite a bit of confusion in the market surrounding the use of social media background screening. This article discusses the do’s and don’ts and presents a case for why organizations should standardize on a process.
Let’s start with some facts.
Fact 1. Over 70% of employers scan candidate’s social media accounts prior to hiring. This is according to a 2018 CareerBuilder survey. Of those scanning social media accounts as part of the pre-employment screening process, 57% of the respondents said they found something that caused them to not hire the candidate.
Fact 2. Most organizations do not have a written policy regarding screening of social media accounts of potential candidates and/or existing employees. However given Fact 1, we know hiring managers are the ones predominantly performing these scans in an ad hoc manner.
Fact 3. The Federal Trade Commission (FTC), Bureau of Consumer Protection reviewed and ruled on a company providing background reports from publicly available social media posts and determined that like all background reporting companies and employers that use these reports, you have to follow the guidelines as dictated by the Fair Credit Reporting Act (FCRA). As long as these rules are followed, it is perfectly legal to use social media screening to make a hiring decision.
The FTC ruled in 2011 that it is legal to use publicly available social media posts to make hiring decisions.
Let’s be clear that what we are talking about is reviewing only publicly available posts. These are social media posts that anyone can view without either being logged into the social media platform and/or “connected” to that individual such as a friend of that individual. Currently, there is no federal law on the books about viewing private posts, however 26 states have social media privacy laws that prohibit or restrict an employer’s access to social media accounts of applicants and employees. Again, we are referring to publicly available posts in this article and only as it pertains to companies hiring in the US and Canada. The European Union has already passed a law that requires employers to notify candidates before they view their public social media profiles.
Here’s where employers can get into trouble.
From an EEOC standpoint, employers are not allowed to discriminate based on protected class information such as sex, age, and religious affiliation. This means that if a candidate decides to display their affection for a particular religion on their public Facebook profile, you cannot use this as a reason to not hire them. So, by casually reviewing social media profiles of your candidates, you could be violating EEOC laws without even knowing it. By implementing a rigorous process and outsourcing this function employers can avoid this scenario. Another way to ensure you are abiding by the law is to follow the FTC’s FCRA guidelines which dictates a few simple rules to both employers or users of background reports and those agencies which provide the reports. These are:
You must take reasonable steps to ensure the maximum possible accuracy of what’s reported from social networks and that it relates to the correct person.
Provide copies of reports to people and having a process in place if people dispute what’s said about them in a report.
Employers have anobligation to provide employees or applicants with advance notice of any adverse action taken on the basis of the reports.
Let’s look at a real-world use/case.
A hiring manager is about to pull the trigger on an offer for a candidate. She looks up the candidate on Facebook and starts scrolling through the candidate’s posts. She notices some very derogatory comments about certain classes of individuals. Based on this information, the hiring manager decides to not hire the candidate.
The candidate thought for sure they were a lock on the job but time goes by and they don’t hear from the hiring manager or the company. The candidate then finds out from a friend that works at the same company, the hiring manager saw something in their social media that caused them some concern. The candidate is very confused and reviews all their posts which are largely uplifting comments, posts about the family, vacations, etc. The candidate’s friend digs a bit deeper and talks to the hiring manager about what she saw. What the friend finds out is that the hiring manager was looking at the wrong profile when they made that determination to not hire the candidate.
From the company standpoint, HR wasn’t even aware the hiring manager made this determination from reviewing social media posts. But that doesn’t change the fact, that the company was actually breaking FCRA rules, rule (1) above specifically. In fact, they broke all three rules. And as a result, the candidate had no real recourse other than to report the company to the FTC. By having a hiring manager review, even casually, the candidate’s supposed social media accounts, they must follow FCRA guidelines since this could be considered a background report.
How can an employer avoid these pitfalls?
There are several things an employer should consider.
Have a written policy about using social media for screening candidates and centralize the task to ensure consistency in approach.
Use a social media background screening company that is FCRA compliant.
Let your applicant know you reserve the right to review their public posts and get consent from them on the job application.
If companies follow the above, you can avoid getting into trouble with the FTC and possible state laws. In addition, you can provide consistency and thoroughness in the review process, remove possible subjectivity, have a document trail to avoid EEOC protected class issues and even reduce the time it takes to perform the task. Lastly, your candidates will have a mechanism to dispute the report given a scenario above whereby the wrong social media profile was used to make this important hiring decision.