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Social Media Background Checks

Are They Legal?

By Bisk
Social Media Background Checks: Are They Legal?

While we enjoy the ability to share our lives with friends and family through social media sites like Facebook, Twitter or Pinterest, it is increasingly common that potential employers are tapping in to these platforms and seeking information on our private lives in order to assess our suitability for the workplace. For better or for worse, our lives are no longer as private as they once were.

Legal Aspects of Social Recruitment

Hiring managers often wish to hire the best person for the job, not just the person with the most skills. The ability to see how an applicant might spend their time, the degree to which an applicant exudes competence and professionalism and whether their online presence indicates character flaws are all relevant to a potential employer. With this in mind, it may not be difficult to understand why a potential employer would want to see a candidate’s social media activity.

Employers are legally required to avoid discrimination on the basis of an applicant’s age, gender, religion, sexual orientation or ethnicity. Such data is intended to be used for statistical purposes only, which is often stated quite clearly on the application. Online social media platforms often include voluntary disclosure of characteristics like age, religion and ethnicity. When an employer can view these personal characteristics of applicants without voluntary agreement, a chance for misuse of the information is created.

Social Intelligence

According to the company, Social Intelligence, when employers attempt to find and review candidates’ social media themselves, they are exposed to protected class information and other irrelevant information that cannot be considered in the hiring process. Social Intelligence said they redact this information from reports so employers only see information that matches their legally acceptable criteria. The Federal Trade Commission recently addressed these concerns by granting the right to scan an applicant’s social media history to companies which conduct background checks on behalf of prospective employers.

Social Intelligence and similar companies are only permitted to scan information that is publically accessible through web searches. Companies like Social Intelligence are only able to access, review, and report information that is publicly available online.

How Should Recruiters use Social Media?

The legality of searching social media still lies in a gray area at this point. While companies like Social Intelligence can help simplify the process by redacting unnecessary information, the fact remains that employers can still choose to institute social media searches on their own.

To avoid legal complications in the future, employers are advised to respect the privacy of a user’s information. While publically available information can be viewed, employers should not make any attempts to scan private photos or posts. Some employers have attempted to do so by requiring access to an applicant’s social media passwords, or by requiring an applicant to “friend” the employer to open access to personal information. Such practices should be explicitly avoided.

Remaining compliant with FTC rulings and the practices of companies like Social Intelligence, hiring managers should clearly indicate any intent to view social media on their job applications, including the ability for applicants to verify that the profiles are their own. Recruiters and HR professionals should be trained to establish this communication with applicants and show them exactly what type of information they may find relevant. If applicants can feel that their privacy will be respected and that employers are only, and quite rationally, looking for glaring character flaws like illegal drug use, they may be more comfortable with the idea of a scan.

Category: Human Resources