Hello! This is Nicolas Dufour, General Counsel at ClearStar, coming to you with the next installment of For the Public Record—a blog that features thought leadership from the most seasoned experts on our staff, across all functions of the background screening process. This month’s post will focus on social media screening—why it’s important and how it works. I hope it helps demystify the process for you so you can take advantage of another tool to understand your candidates better.
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 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 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. 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 candidate to dispute the information and have the chance to provide mitigating circumstances to the employer. After review of any information provided by the candidate/employee, if the employer decides not to hire/retain the candidate/employee, the employer shall then provide a final adverse action letter to the candidate/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, view our webinar on the topic here. This is For The Record.
