By Brian Moore
The use of social media to conduct background checks is increasing in popularity all the time. According to some studies, a majority of employers are now conducting such searches. What employers need to remember is that this is not a free-for-all with no consequences. Social media screenings can have real legal implications. The primary concerns are discrimination and invasion of privacy claims.
As far as discrimination laws go, social media screenings are definitely a double-edged sword. You can gain useful information about applicants but you also see things that would be illegal for you to consider in making a hiring decision. You can’t “unsee” things, and that may make it difficult to defend against a charge of discrimination. For example, an employer could be accused of using social media to eliminate applicants of a certain race or religion.
Another concern is that social media searches may subject the employer to an invasion of privacy claim. Here, common sense rules apply. Individuals have a privacy interest in certain personal information if they have made reasonable efforts to keep the information private. If the person has not made an effort to take such steps—if their Facebook account is set to public, for example—they have arguably waived any privacy rights to the information. Employers should not try to access information that is password-protected or otherwise kept private by an individual. Certainly, employers should not attempt to fraudulently connect with applicants to gain access to their Facebook accounts.
When using social media to conduct screenings, remember that the same rules that apply in real life apply to the online world. In addition, policies and procedures are key to reducing risk. Have a written policy outlining the use of social media in background checks. Have nondecision-makers conduct the screenings, preferably those trained in human resources. Then, they can relay appropriate information to the decision-makers. Regularly train everyone on discrimination laws. Obtain consent to perform the screening when possible (for example, on the employment application). Consider performing the social media screenings later in the application process after you have narrowed down the candidates. Compile a list of items you wish to check for online, and then run the list past your employment lawyer. Finally, if using a third party to conduct your online screenings, remember that this will be considered a consumer report implicating the Fair Credit Reporting Act, according to an opinion letter issued by the Federal Trade Commission in May 2011.
About the Author
Brian Moore is a partner in the Labor and Employment Law Department of Dinsmore & Shohl LLP, representing employers in all aspects of labor and employment law. The author of the West Virginia Labor & Employment Law Blog, he has obtained an AV Peer Review rating in Martindale-Hubbell, has been named a Rising Star by Super Lawyers Magazine and is a 2012 graduate of Leadership West Virginia. He serves on the board of directors of the Putnam County Chamber of Commerce and is the president-elect of Mountain State Rotary E-Club.
