Social Media Background Screenings
Due diligence is critical to an informed, quality hiring decision. Social media background screening may be conducted to provide an employer with additional information to evaluate a job candidate’s qualifications for employment.
Traditional employment background screenings generally provide verifications of the candidate’s identity, employment history, education, trainings, licensure, and demonstrated work skills, as well as a consumer report and criminal conviction history. Social media screening is different. Social media screening can provide a bigger picture view of the candidate’s personality, character, interests and social interactions. This behavioral “real life” look is one of the reasons some employers utilize social media screening to help determine who the person really is and the type of employee he might become. However, using social media to learn more about the candidate can also put an employer at risk for potential liabilities in claims of discrimination and negligent hiring.
Some employers treat social media screening as enhanced screening. The general opinion is that the more information that can be obtained about a potential hire, the better the chance that the employer will make a good hire. Too much information carries a risk that the employer gains access to information that may violate the candidate’s rights to privacy and legal protections against discrimination.
There are many potential risks in viewing a candidate’s social media. Protected characteristics and membership in a protected class may be evident in the social media profile and content. Some employers take the position that an equal risk is inherent during a personal interview with a candidate. Observations of a candidate’s appearance, mannerisms, language and speech, are made by the employer during a personal interview with the candidate. There is also a risk that during an interview a candidate reveals information about himself that an employer cannot and should not consider for employment purposes. Becoming aware of a protected class status or personal characteristic does not require the employer to make use of that information in a hiring decision. It does require the employer to respect and protect the candidate’s rights against discrimination and ensure his hiring process is conducted professionally and objectively.
A difference between the personal interview and a social media screening is the formal recognition by the candidate that he, the candidate, face-to-face with the employer, will need to be on his best behavior to be considered for the job. The candidate’s answers may be scripted to show the candidate in the best light. In contrast, the social media content was created by the person as a personal platform to share information with others in a non-work environment. Most likely the posts are informal in nature and design with little thought as to how they might be interpreted or used by a potential employer. The candidate’s personal persona may be quite different from his professional persona. If the employer views reading social media content as an informal act rather than as part of the formalized hiring process, the employer may lose focus in evaluating the candidate’s qualifications to meet professional job standards and responsibilities.
By screening the candidate’s social media, the employer may learn more than he wants to know, more than what he needs to know for business purposes, and incur potential liability for that knowledge. If an employer uses information about protected class and characteristics that the employer obtained from a social media screening as a basis for a hiring decision, there is cause for a rejected candidate to take legal action against the employer for presumed discriminatory practices.
Legal Risks
The employer’s exposure to a candidate’s protected information under federal, state, and local anti-discrimination laws is a major drawback to using social media screening. From social media, an employer could discover protected class status of race, color, religion, sex, national origin, disability or familial status, protected characteristics such as age, marital status, military status, gender expression, gender identity, or other protections afforded by state and local laws. Information may be posted regarding medical conditions, family issues, or illegal activities.
There can be an inherent bias or expressed favoritism in hiring decisions that must be overcome with education, training, objectivity and provable data to properly, fairly analyze and evaluate candidate qualifications. Social media is not an objective source of information nor can it be relied upon for accuracy or without bias itself. An employer in reviewing social media might unconsciously factor in some or all of the profile or content data in the hiring decision. A job candidate who was not selected for employment may feel there was bias in the hiring decision and make a claim for employer discrimination.
There is another way that an employer could create bias and potential claims of discriminatory treatment. All job candidates should receive the same screening treatment with no exceptions. If an employer selectively chooses which candidate to screen with social media, the employer has discriminated against others. What if the chosen candidate has set privacy restrictions on his social media account? Does the employer consider this a negative event when comparing candidate qualifications? What if a candidate chooses to not participate in any type of social media? Would this candidate receive equal consideration with other candidates who do participate in social media? Does the employer has a policy and practice to acknowledge relevant situations and offer an acceptable alternative screening that would provide similar information? Selective screening or different screening unsubstantiated by business necessity leads to potential risks of liability.
Claims of discrimination in the hiring process are one of an employer’s greatest legal concerns. Equally concerning is the employer’s potential liability for negligent hiring related to social media profile information. If an employee committed harmful acts at work (e.g., violent behavior), and information was available on that employee’s public social media profile that could have predicted such behavior, the employer could be held liable for negligent hiring by ignoring that information when the hiring decision was made.
As a positive note, conducting social media screening can provide an employer with a broader view of a job candidate as an individual at a much lower screening cost. However the employer has no assurance of the truthfulness of information presented nor can the data be verified through other legitimate sources. An employer considering social media screening may need to consult with a legal professional to determine the correct, compliant strategy to effectively screen job candidates using social media.
Conducting Social Media Screening
There are some steps an employer can take to reduce potential legal risks in conducting social media screening. An employer should:
- Ensure objective screening practices are in place with adequate documentation on how to analyze and evaluate candidate credentials to job requirements and standards.
- Ensure consistent application of policy and practices to screen every candidate in the same manner and method. An employer cannot selectively choose to social media screen one candidate over another.
- Conduct a personal interview with the candidate to preliminarily qualify the candidate and before advancing to the next phase of the hiring process. An employer should never conduct social media screening before conducting a personal interview. An employer should not have prior knowledge of the candidate’s personal information that would cause the employer to ask the candidate interview questions that are discriminatory and therefore illegal.
- Advise the candidate that social media screening is a part of the standard hiring process policy and practices and that the candidate will need to consent to standard screenings before the employer conducts a social media search. Candidate consent to screenings should be in written authorization form.
- Use a third party Fair Credit Reporting Act (FCRA) compliant screening company to conduct social media screening. Social media screenings must be in compliance with FCRA regulations the same as traditional background screenings. A third party screening company offers protection to the employer in that the screening report will have been scrubbed of all protected characteristics. The screening company provides a job-related report to the employer minimizing the chance of bias in decisioning. The third party company does not make a hiring decision.
- Conduct social media background screening as the last step in the hiring process. A better practice would be to screen social media after a making a contingent job offer to the selected candidate. The offer should be contingent upon a satisfactory screening of social media profile and content.
- Document hiring decisions with a printed copy of social media content page or screen shot which was the basis for the hiring decision. A written document of the reasons for rejection should be attached to the printed content page as a paper trail and as a defense against potential future claims of hiring discrimination.
- Consider the source of the screening information with focus on what the candidate has posted, not on comments that others have said about him/her. An employer may wish to discuss with the job candidate any issues that may be of concern. This will allow the candidate an opportunity to provide additional information or correct misinformation.
At the present time there is no clear and conclusive data that would suggest conducting social media background screening produces a quality hire or prevents a bad hire. Nor is there evidence that social media screening should replace traditional background screenings. Taken as a complement to traditional screenings and conducted in a legally compliant manner with appropriate safeguards for an individual’s privacy and anti-discrimination protections, social media screening can be beneficial in a whole person approach to quality hiring.