Nicolas Dufour – Executive Vice President, General Counsel & Corporate Secretary for ClearStar – will be one of the hosts of a free webinar titled “Social Media Background Checks: Supporting Diversity, Equity, Inclusion, and Belonging (DEIB) in the Digital Age” presented by leading Human Resources software provider Paycor on Thursday, March 2, 2023. Dufour will be joined by Dawn Standerwick, Vice President of Global Sales at ClearStar, and Bianca Lager, the President of Social Intelligence™. To register for the free webinar, which starts at 11:00 AM EST, click here. The blog below titled “Is There a Right Way to Screen Social Media?” was originally written by Dufour in March 2019 and is being reprinted for the webinar.
Is There a Right Way to Screen Social Media?
By Nicolas Dufour
Nowadays, it’s common for businesses to make background screening a priority. But for many, social media screening is uncharted territory—and for good reason. Social media screening can waste time and pose risks if not done correctly.
However, with over 2.5 billion users worldwide, employers can’t afford to ignore this wealth of information.
Why Social Media Screening Matters
Social media screening can help prevent problems in common areas of concern like:
- Hostility, harassment, and bullying
- Safety of employees and clients
- Negligent hiring practices and lawsuits
- Risk of bad publicity
However, employers should not attempt to screen social media in-house, as they may discover protected information that cannot be considered when making a hiring decision, at least without risking violation of Title VII of the Civil Rights Act of 1964. Remember: you can’t unsee what you’ve already seen.
Examples of protected classes include:
- Race
- Color
- National Origin
- Genetic Information
- Age
- Disability
- Veteran Status
- Color
- Jurisdictional Information
- Sex
- Sexual Orientation
- Gender Identity
A good social media report from a reputable source (i.e. a Consumer Reporting Agency) will avoid such pitfalls and mainly focus on four (4) business-related categories:
- Potentially Illegal Activity
- Potentially Violent Conduct
- Sexually Explicit Material
- Demonstrations of Racism and/or Intolerance
How Does It Work?
Social media reports usually involve a combination of technology and human expert analytics to adequately identify a candidate’s online presence on any publicly available website, including social media, blogs, micro-blogs, photo sharing, online commerce, news and media, etc. Once a candidate’s profile is identified, the content is reviewed and flagged for any of the workplace safety issues identified above. Only information that is posted directly by the candidate should be included in the report—information posted by third parties should be excluded. The scope of the search depends on the user’s preference and settings. A report is then created with examples of red-flagged material with the redaction of any federal or state-protected class information.
The report provides insight into a candidate’s online behavior and can help employers determine if the candidate is a good fit.
The Employer’s Responsibility
The Federal Trade Commission (FTC) recognized in its opinion letter dated May 9, 2011, that a company that provides social media screening services used by employers in pre-employment background screening is a Consumer Reporting Agency and such reports are consumer reports subject to the Fair Credit Reporting Act (FCRA). Therefore, users of such reports must follow the FCRA requirements of providing disclosure and obtaining written consent prior to requesting such reports.
Additionally, if the user takes action based on information included in the report, the user must provide a pre-adverse action letter, wait a reasonable amount of time for the applicant to dispute the information and have the chance to provide mitigating circumstances to the employer. After review of any information provided by the applicant/employee, if the employer decides not to hire the applicant/employee, the employer shall then provide a final adverse action letter to the applicant/employee.
It is worth noting that the limitations imposed under various “ban the box” regulations apply directly to employers and they generally do not make a distinction whether you obtain the information internally or from a third-party vendor. The EEOC does not make a distinction either. Therefore, you should rely on a subject matter expert in order to avoid legal pitfalls.
Social media screening done right can be a powerful tool for identifying the best candidates for your business. The first step is choosing the right background screening partner to rely on. For more information, register for our webinar on the topic here.
ClearStar is a leading global Human Resources (HR) technology company that specializes in background checks, drug testing, and occupational health screening. ClearStar also offers social media screening solutions that turn social media posts into actionable insight and help employers leverage social media when hiring. ClearStar has provided innovative technology solutions to the HR industry from its corporate offices in Alpharetta, Georgia, since 1995. To learn more, contact ClearStar.
© 2019-2023 ClearStar. All rights reserved. – Making copies of or using any part of the ClearStar website for any purpose is prohibited unless written authorization is first obtained from ClearStar. ClearStar does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
Let's start a conversation
Nicolas Dufour - EVP and General Counsel, Corporate Secretary
Nicolas Dufour serves as EVP, General Counsel, corporate secretary, privacy officer, and a member of the executive management team for ClearStar. He is proficient in the FCRA, GLBA, Privacy Shield, and GDPR compliance, as well as other data privacy regimes and publicly traded companies' governance. He is responsible for managing all legal functions to support the evolving needs of a fast-paced and rapidly changing industry. His position includes providing legal guidance and legal management best practices and operating standards related to the background screening industry, federal, state, and local laws and regulations, legal strategic matters, product development, and managing outside counsels. He represents the company in a broad range of corporate and commercial matters, including commercial transactions, M&A, licensing, regulatory compliance, litigation management, and corporate and board governance. He researches and evaluates all aspects of legal risks associated with growth in to different markets. He assists the management team in setting goals and objectives in the development, implementation, and marketing of new products and services. He advises and supports management, Board of Directors, and operating personnel on corporate governance, company policies, and regulatory compliance.
At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.
