Be cautious when using social media to screen applicants
By Lester Rosen
Rosen is an attorney and founder and CEO of Employment Screening Resources (ESR). He will present an audioconference “Web 2.0 Caution! The Legal Line You Walk When Using Social Media and Search Engines to Recruit and Screen Applicants” on Oct. 26. For more information, click here.
Employers have discovered a treasure trove of information about potential job applicants by using social media, social network sites, and search engines for screening. However, the unrestricted use of Web 2.0 by employers for hiring is not without substantial risks.
On one hand, failure to review social media sites could be evidence of negligent hiring if the review could have revealed negative information relevant to the employment decision, and the employer is later sued for the acts of the employee. On the other hand, viewing these sites is fraught with danger due to potential allegations of discrimination, invasion of privacy, illegal consideration of legal off-duty conduct, and issues of accuracy, credibility, and authenticity. The issue is complicated further since many employers will conduct social media searches whether assisted by a Consumer Reporting Agency (CRA) or not and may not fully understand the legal limits of such searches.
A June 2011 blog on the Federal Trade Commission (FTC) website, ‘The Fair Credit Reporting Act & Social Media: What Businesses Should Know,’ reminded employers and CRAs of their obligations under the Fair Credit Reporting Act (FCRA): “Employment background checks can include information from a variety of sources: credit reports, employment and salary history, criminal records–and these days, even social media. But regardless of the type of information in a report you use when making hiring decisions, the rules are the same. Companies providing reports to employers–and employers using reports–must comply with the Fair Credit Reporting Act.”
A significant problem for CRAs that attempt social media searches is compliance with the accuracy requirements of the FCRA for “reasonable procedures to assure maximum possible accuracy.” How does a CRA determine if the information found on the Internet about job applicants is credible, accurate, and authentic–in other words, true–and actually emanated from, or relates to, the applicant before reporting it to an employer? If a social media site contains negative information, how is the screening firm that supplies the information to go about verifying that it is accurate, authentic and belongs to the applicant? If the search happens to turn up a criminal record, the obligations grow.
The issue becomes even more complex with cases of false postings under another person’s name on the Internet–a sort of “online identity theft”–or if negative information is posted anonymously online–known as “cyber slamming”–where people commit defamation without anyone knowing their real identity. Also, most people have “computer twins,” people with the exact same names online. Employers should also consider if what a job applicant says online is true, and whether it would be a valid predictor of job performance or employment related, as well as non-discriminatory.
One approach to minimize the risks of non-compliance with the accuracy requirements of the FCRA when using social media background checks is for employers to conduct the search themselves in-house. However, these in-house social media searches can have potential pitfalls for an employer unless safeguards are maintained to ensure that the use of information found on social media sites is fair and non-discriminatory. If an employer does decide to conduct social media background checks in-house, there are many areas to consider, including developing a written policy for searches, performing searches after a conditional job offer has been made, and avoiding fake identities to uncover information about a candidate.
Employers should realize that the bottom line when conducting social media background checks is to proceed with caution. Using the Internet for screening is far from risk-free, especially since there has yet to be clear law or court cases that show how to proceed in this area. Employers should never assume that everything found on social network sites is fair game in the pursuit of information on job applicants.
For more information about social media background checks, read the article ‘Social Media Background Checks Conducted by Consumer Reporting Agencies Subject to Same Fair Credit Reporting Act Rules’ from Employment Screening Resources (ESR) at:
Lester Rosen is Founder and CEO of Employment Screening Resources (ESR), a background check company accredited by The National Association of Professional Background Screeners (NAPBS). He is the author of “The Safe Hiring Manual,” the first comprehensive guide to employment screening, and is a frequent speaker nationwide on safe hiring issues. Rosen was the chairperson of the steering committee that founded NAPBS, a trade organization for the screening industry, and served as first co-chairman.