www.ParalegalToday.com Q3 - 2017 21
Consider the content reported equivalent
to comments made during an interview
or while in the workplace. Publically
shared content on a mass media forum
is up for grabs for the world to see. Consider
if the candidate said this to you or
your staff. If so, would you hire them?
Consider second chances. Like any
other background screening, an item
flagged on a report does not automatically
disqualify a candidate for a job offer.
Was it a single remark? If they removed
the content, would that be satisfactory?
Consider one time mistakes and work
with your candidate to clarify future
expectations.
Provide candidates notification, in
advance, of your intent to take “adverse
action.” If you decide to not hire a candidate
based on information found in the
background check, you must provide the
candidate with a notice of intent to take
adverse action, a copy of the Summary of
Your Rights under the FCRA, and a copy
of the background report itself. You then
must give the candidate adequate time to
respond and potentially challenge the report’s
findings. A qualified social media
screening firm will handle adverse action
requirements on your behalf.
Provide candidates an adverse action
letter. Should you make a final decision
to not hire the candidate, provide him or
her with a final notice, or adverse action
letter. This is in addition to the preadverse
action letter.
Have legal counsel ensure policies and
procedures are updated. Keep in mind
that regulatory requirements can change
frequently, so make sure your policies and
procedures are carefully reviewed by your
employment law counsel to confirm that
you are still fully compliant. This rule applies
to all forms of employee background
screening, not just the social media variety.
Selecting a Third-Party Screener
Most employers find that retaining
a qualified, independent backgroundscreening
firm will produce the most
useful information while also providing
assurance of thorough legal compliance.
Some of these firms also employ proprietary
technology that enables them to
conduct searches much more thoroughly,
efficiently, cost-effectively than is possible
by internal HR staff. However, there
are some significant factors you should
consider before hiring a background
screening firm:
Are they fully cognizant of all relevant
laws and regulations? Probe to ensure the
vendor is not only familiar with FCRA
and EEOC regulations, but also with
applicable state (and in some instances,
even local) rules. Verify that the firm is
an actual Consumer Reporting Agency,
vetted by the Federal Trade Commission,
which has required them to adhere to the
FCRA and ensures compliance with all
applicable regulations. Your legal advisors
will appreciate confirmation that the
information the screening firm uncovers
will not put the company at legal risk,
but will instead help detect behavior that
could cause serious damage to the company
or its employees or customers.
Do they restrict their search to publicly
available information? Is their approach
to investigations completely defensible
in a court of law? Do they employ tactics
that might increase your legal exposure?
Would they be willing to be scrutinized
or audited by an enforcement agency
such as the Federal Trade Commission?
Do they limit their searches to the
most popular social media sites, such as
LinkedIn and Facebook, or do they dig
deeper to uncover potentially relevant
material on less well-known platforms?
Relevant, legally actionable information
can be discovered on everything from
blogs, forums, and business-listing sites,
to dating networks — not just Facebook,
Instagram and Twitter.
Do they ensure that their searches
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