Social Media Background Checks: What You Need to Know in 2017 17 Mar 2017

Definition of Social Media Background Checks: Many employers address employment issues by providing in-depth background checks for employers that include online research from social media and other internet sites. Naturally, it has to comply with the Fair Credit Reporting Act (FCRA) and anti-discrimination laws.

According to CareerBuilder, 60 percent of employers used social media to research job candidates in 2016, a 500 percent increase since 2006.

The same survey found that of the 59 percent of hiring managers who used search engines to research candidates, nearly half discovered information that negatively impacted the candidate. For example, it including provocative or inappropriate photographs or videos (46 percent), information about candidate drinking or using drugs (43 percent), and discriminatory comments related to race, religion and gender (33 percent).

Increases Risk of Hiring Discrimination

Social media has become a staple of recruiting, but it’s treading into new and possibly dangerous territory. There’s a lot you can learn about applicants in their profiles that discloses protected class information.

From as little as a simple photograph, you can infer the gender of that person, their race, ethnicity, or age. You might be able to infer a disability status. You might be able to see that they are pregnant.

This is not information you can legally ask about when making a hiring decision. However, if you look at social media profiles it’s hard to avoid. Once you’ve seen it, it’s hard to prove it didn’t influence your decision. That’s why running Social Media Background Checks can help you make the right call.

It’s also possible that the simple fact of using social media as your primary recruitment channel is discriminatory against older workers who are less frequent social media users. The proliferation of social media as a recruiting tool has turned into a minefield of traps for the unwary.

Social Media Background Checks: The EEOC is Listening

In 2013, the EEOC reviewed a case where a complainant alleged she wasn’t selected for a park ranger position with the National Park Service because of her age and sex. She argued that the agency’s recruitment strategy focused on social media channels, placing older workers at a disadvantage in violation of the Age Discrimination in Employment Act. The strategy was ultimately unsuccessful in court. But, more such cases are easily foreseeable as older job applicants struggle to maintain a social media presence that’s simply second nature to Millennials.

The EEOC has also held other meetings addressing how social media platforms serve as a kind of “modern day water cooler.” They affect the workplace in areas such as recruitment and hiring, harassment, records retention and litigation. Last year it began scrutinizing workplace practices and policy about social media that might infringe on employees’ rights to discuss unlawful discrimination, harassment or other issues.

Even the NLRB has determined that employees may not be disciplined for negative posts. It’s all because the comments may be the beginning of unionization. Unfortunately, the NLRB has set a low bar as to what are “organizing comments,” so tread carefully.

States Taking Action to Limit Employers’ Access

Since 2012, a majority of states have either considered or passed some type of legislation limiting or barring employers’ access to employee passwords,. They are, thus, prohibiting the monitoring of employee’s social accounts, or basing hiring decisions on social media activity. You can see a complete list of last year’s actions among the states here.

With federal and state policies still evolving, it’s hard to be sure of all the Do’s and Don’ts. In the meantime, following some best practices can keep you on the right side of the law. Make sure to read our article about “New Employment and Background Check Laws by State” to learn more!

Five Best Practices for Employers

Here are some suggestions to help employers achieve the benefits of social media background checks, while minimizing the legal risks.

1. Social media screening should be performed by the HR department or a third party background check vendor – someone who knows all the rules. Hiring managers shouldn’t run any social-media-driven screening processes. Social media background checks vendors insulate internal managers from liability. They will truncate protected class information and show focused information that an employer chooses and is job-related.

2. Social media background checks should be conducted at the end of the hiring process. And, they should be run in conjunction with any background checks required.

3. Social media screenings should examine only “public profile” information. Employers shouldn’t demand an applicant’s passwords for social media accounts. This is specifically against the law in many states. Furthermore, employer requests for such information could violate the Stored Communications Act in all 50 states.

4. Develop policies for determining when social media background checks are appropriate and perform such checks on a consistent basis. For instance, the employer might decide such screening is necessary only for workers managing company accounts. Or that’s it’s mandatory for workers interacting with customers, the public, or patients in the case of hospitals.

5. Document any adverse actions. Employers should disqualify applicants exhibiting dangerous, or illegal conduct on their public social media sites.

Social Media screening will continue – but with a more well defined process.

So, what is the future bringing? Given the trends, 2017 will be the year in which smart organizations with active risk management strategies get proactive. We can expect many businesses to begin developing more formal policies for how searches will be executed and how the information will be reviewed. In the meantime, Contact us for help to get the best background check possible!