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Facebook. Moreover, that total represents but a
fraction of the overall internet universe, which
includes everything from blogs, online forums and
business directories to dating networks.
Social Media Screening: Potential
Benefits. Easily Avoided Risks.
An effective social media background check can
reveal a range of behaviors that should be carefully
considered when evaluating a candidate for
employment. Compared to background screens
primarily focused on historical data, no other background
screening gives you the kind of real-time
behavioral data that social media does—uncovering
potentially dangerous and hostile workplace
safety concerns such as violent threats or bullying,
intolerant or derogatory statements against
groups of people in a protected class, potentially
illegal activity, and sexually explicit material.
That revealed information rarely, if ever, would be
exposed in an interview and certainly would be left
off a résumé. Catching a potentially disastrous hire
in this way could also save a business a lot of money.
Data in one of Sterling Talent Solution’s recent
white papers suggests that the cost of a negligent
hire could be anywhere between 100 to 250 percent
of the hire’s annual salary and benefits depending on
the seniority of the role and the disruption caused
to the business. That might seem high, but it’s also
important to note that these figures assume there
has been no reputational or brand damage to the
business, which could be incalculable. In the era of
customers researching their account representatives
or customer service attendants online, we know that
consumers are very interested in trust and a general
sense of moral correctness.
However, there are also risks to organizations
performing such checks in a sloppy or disorganized
fashion, and moral correctness also applies to how a
social media screening is conducted. Simply conducting
an online search of an applicant’s name could
expose an organization and its employees to severe
legal penalties, for example, by uncovering information
that could lead to discrimination claims. Federal
EEOC regulations strictly limit the information
organizations can collect on prospective employees—
and the penalties for violating these standards can
be severe. State agencies such as California’s FEHC
enforce similar rules.
In addition, since inquiries about employment
candidates are considered investigative consumer
reports, the firms that conduct such investigations
are deemed consumer reporting agencies and are
governed by the Fair Credit Reporting Act (FCRA).
Both hiring companies and the agencies that perform
background checks must comply with a host of FCRA
rules, and lawsuits claiming noncompliance with
these rules—including class action lawsuits—are
increasing in number and severity.
Moreover, there appears to be a noteworthy
increase in litigation involving mere technical violations
of FCRA regulations, and plaintiffs do not need
to prove actual damage as a result of such violations.
20 Q3 - 2017 www.ParalegalToday.com
“Employers should follow some essential
guidelines to reduce exposure... to legal
liability arising from social media screenings”
Finally, there are no caps on awards to plaintiffs, making the financial repercussions
of noncompliance potentially significant.
The risks are very real, but with a little care they can be easily managed, and
the rewards can be huge for any hiring firm. Fortunately, it is relatively easy to
comply with these regulations if you follow a few basic procedures.
Guidelines for Social Media Screening
Employers should follow some essential guidelines to reduce or eliminate their
exposure to legal liability arising from social media screenings, many of which are
similar to procedures for other types of employee background checks. Following
are some of the most important guidelines:
Do not conduct the screening in-house. To conduct an effective online investigation
without putting the company in legal jeopardy, the best practice is using
a third-party screener that has a full understanding of all local, state, and federal
regulations. A well-qualified social media screening firm can perform a search
more efficiently, thoroughly, and legally than can be done by in-house staff.
Establish a clear policy for social media screening. Determine who will perform
the background check, the types of information that will be pursued, at what point
during the hiring process the search will be performed, and what information will
be included in the report (e.g., screenshots of potentially damaging information).
Also clarify which categories of prospective employees (e.g., senior management,
customer-facing employees, all employees) will be subject to such screening and
maintain that policy with strict consistency. Consider screening subcontractors
and temporary workers as well as full-time employees.
Establish a clear focus for social media screening. Social media can capture
any activity on the internet relating to a candidate. In order to create consistency
in the hiring process and standardize criteria, the best practice is to apply the
same lens to every social media screening and focus on potentially dangerous and
hostile workplace safety concerns such as violence/threats, intolerant/derogatory
statements against groups of people in a protected class, potentially illegal
activity, and sexually explicit material. This empowers the company to focus on
its responsibility for keeping employees safe, having a good fit with the company’s
culture, and hiring candidates who live up to the organization’s code of conduct
and basic policy guidelines.
Protect the candidate’s privacy by limiting an investigation to publicly available
content. Do not ask for social media passwords or create a false identity to “friend”
a candidate. The National Conference of State Legislatures reports that in 2016, 15
states considered legislation to prevent these types of potential privacy violations.
Be wary of retaining any firm that employs such questionable practices.
Obtain the applicant’s written consent prior to conducting the search. An
online investigation or focus on social media content should be treated like any
other background screening, thus making it imperative to employ the services of
a verified consumer reporting agency that is liable and compliant for obtaining
the applicant’s informed and written consent per FCRA regulations.
Ensure that the screening report does not include information that could
be construed as discriminatory toward the candidate (or classes of candidates).
Make sure that any legally problematic information uncovered during
the search is scrubbed from the report submitted by the screening firm. A
social media background screening should focus solely on workplace relevance
and not on arbitrary or protected information. For example, it’s just
as important to not apply someone’s religion to a hiring decision as it is for
a manager to decide that they simply didn’t like the fact that the candidate
took too many selfies.
Consider how to apply the social media background screening to your current
hiring policies. Does the content provided violate the organization’s code
of conduct or social media policy? Apply the same criteria to potential hires
as you do to current employees.
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