Guest authored by The Social Intelligence team
The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your own advisors with questions regarding the content herein. The opinions expressed in this article are the opinions of the individual author and may not reflect the opinions of MeridianLink, Inc.
More than ever, companies are turning to their trusted background screening providers to help formalize social media screening for candidates and employees. Because social media gives a snapshot of a person’s attitude, habits, and behaviors in real-time, these insights allow an employer to get an accurate picture of a person’s public-facing online behavior.
Why Implement Social Media Screening in the First Place?
Litigation regarding sexual harassment, discrimination, and intolerance in the workplace is increasing. Individuals have sued businesses for negligence, allowing behaviors to happen, or failing to investigate complaints. Screening provides businesses with a concrete way to examine public digital behaviors, protect brand reputation, and avoid substantial financial losses by uncovering behaviors that will never appear on a traditional background check. For these reasons, the utility of up-to-date activity alongside historical data to identify negative behavior patterns is significant.
Are There Legal Concerns?
By definition, all consumer reporting agencies are subject to the Federal Credit Reporting Act (FCRA). Additionally, because background checks deal with hiring, the screening process is also subject to the Equal Employment Opportunity Commission (EEOC) standards. Meaning, the information discovered from social media screening cannot be discriminatory. It would be wholly inappropriate for a CRA to use lax standards in social media screening, such as merely googling a candidate’s name. The process must remain structured and serve a permissible purpose.
Businesses that hire a CRA to conduct social media screening minimize their legal risk. When performed in-house, informal screening descends to passing character judgments on the applicant rather than considering relevant issues like intolerance, violence, evidence of illegal activity, and sexually explicit material.
CRAs should follow these nine guidelines for compliant Social Media Screening.
Establish a clear policy for social media screening.
Determine the types of information pursued, when the search will be performed during the hiring process, and what information to include in the report. Existing codes of conduct, mission, and vision can provide an excellent framework for developing a social media screening policy. Also, clarify which categories of prospective employees (e.g., senior management, customer-facing employees, all employees) will be subject to screening and maintain that policy with strict consistency. Consider screening subcontractors and temporary workers as well as full-time employees.
Protect the candidate’s privacy by limiting your investigation to publicly available information.
Do not ask for social media passwords or create a false identity to “friend” a candidate. Either of these actions would cross legal and ethical boundaries.
Obtain the applicant’s consent before searching. FCRA regulations explicitly require this.
Ensure that the screening report does not include information that could reasonably be construed as discriminatory toward the candidate (or classes of candidates). Ensure that the report scrubs any legally problematic information uncovered during the search. Some firms remove all candidate pictures, as long images aren’t material to the screening, to focus on job-related traits rather than physical traits.
Provide candidate notification, in advance, of your intent to take “adverse action.”
Employers who decide not to hire an applicant 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. As the firm, you have a responsibility to handle these requirements on behalf of the client. Some firms make it a practice to package adverse action papers with all background reports to be used by the employer if necessary. If the employer does decide not to hire the candidate, they must also send a final notice of adverse action. Your firm should consider whether to prepare these letters as well or leave that up to the employer’s legal counsel.
Check with legal counsel to ensure policies and procedures remain up-to-date.
Remember that regulatory requirements can change frequently, make sure your attorneys review policies and practices to confirm that you are still fully compliant.
Blogs, forums, business listings, even public shopping wish lists hold relevant, legally actionable social media data. The title of social media screening doesn’t mean you must limit your search to the most popular social media networks like TikTok and Instagram. FCRA regulations stipulate a seven-year timeframe for screenable social media history.
Make sure you have the right person.
It’s not uncommon for people to have the same name. Have procedures to verify that the accounts investigated truly belong to the applicant and not just someone with a similar name or, even worse, pretending to be the applicant.
Combine automated processes with a human touch.
Social media screening requires a sense of tone that artificial intelligence can’t fully replicate. A person knows the difference between jokingly commenting “I’m going to kill you!” on a friend’s post and making a threat. An algorithm without human oversight might flag irrelevant material or miss material that is not explicit in its intent.
Make a sample report.
Any reasonably prudent business understands that the hiring process comes with legal risk, and social media screening is no exception. Have a sample report ready to show to quell your potential clients’ fears. This sample report should exemplify that your firm knows what to include and leave out.
There is a fine line between legal and illegal when it comes to social media screening. CRAs with sound policies and procedures can offer demonstrable benefits to businesses by conducting social media screenings on their behalf.
When can I start offering Social Media Screening through TazWorks Platform?
TazWorks is nearing completion of integration with Social Intelligence and will be announcing it’s general release, our joint integration webinar, and steps for you to take advantage of this new screening type in the coming months. If you still have questions or would like to speak to a TazWorks representative, please follow the link below.