June 24th, 2021 | Angela Preston, SVP and Counsel, Corporate Ethics and Compliance, Sterling
The Legal Landscape of Social Media Screening
More companies than ever are using social media for screening job candidates.1 With more than 70% of the eligible population online, logging an average 2.5 hours per day on social media,2 it’s no wonder that accounts are being mined for their rich and potentially insightful data for job screening. Social media use exploded during the global pandemic in 2020, and the website Datareportal estimates that there are 4.33 billion social media users around the world, or 55% of the total global population. Those users appear to be active — with 9 out of 10 users engaging in activity every month. Much of this information is readily available in the public domain, and employers are tapping into it to make more informed hiring decisions.
Use of social media profiles as an investigation tool is nothing new. Police departments and investigators have been using social media for years. The use of social media background checks as an investigative tool has made headlines in the wake of the attack on the Capitol in Washington, as law enforcement mined social media accounts to identify suspects and learn about the planning and motives of those who stormed Washington. An increasing number of organizations now see social media as a legitimate way to answer questions about a person’s suitability for a job, find the best cultural fit, and prevent bad hires. Social media is an appealing option for employers to access publicly available information to find the right person for the job and avoid costly and potentially risky hires.
Negligent Hiring and Negligent Retention
Many times, social media screening is done to catch red flags and to check that a prospective employee is a good cultural fit for an organization. At the same time, there are liabilities that an employer needs to be aware of. With information so readily available, some might even argue that failure to run a social media search could be considered negligence. To this point, employers need to be aware of their duty of reasonable care in selecting employees. Failure to conduct a reasonable level of pre-employment screening could result in an employer being held liable for negligent hiring — particularly if an employee later causes harm or injury in the workplace.3 Claims of negligent retention result when an employer fails to act when they know or should have known that an existing employee is unfit for duty. With social media information so publicly and readily available on the internet, it is increasingly difficult for employers to claim they could not have known a candidate or an employee posed a risk of harm. A landmark case in Illinois held that an employer was liable for negligent hiring and negligent retention, noting that a simple Google search would have revealed the employee’s use of child pornography.4 While this area of the law is evolving, employers need to consider the risk of negligent hiring and retention, as well as the potential reputational risk of hiring individuals with readily available, public online profiles.
Privacy and Consumer Protection Laws
While there is a strong case for exploring the benefits of social media screening, when it comes to hiring decisions, employers need to tread carefully with social media. In the US, many state and federal laws protect the privacy of individuals — even when the individual has posted information publicly. 26 states have enacted laws that prevent employers from asking for passwords to an employee’s private internet accounts. The federal Fair Credit Reporting Act (FCRA) imposes requirements for consent prior to conducting a third-party background check, even when the information is in the public domain. Failure to abide by these laws can lead to potential class action claims or private causes of action that can be costly and distracting for employers.
Discrimination and EEO Laws
In addition to privacy laws, employers may bump into state and local laws that prohibit the use of information based on basic equal employment opportunity (EEO) laws and principles. Social media profiles often contain information exposing an individual’s age, race, religion, national origin, sex, marital status, disability, or sexual orientation — all of which may be protected characteristics under state or local law, or Title VII of the Civil Rights Act of 1964. These laws protect employees from discrimination in the workplace, and they prohibit employers from taking these characteristics into account in the hiring process. If protected class information is revealed in a social media profile, it’s difficult for an employer to claim it was not used as a factor in hiring.
One way that employers can address concerns about EEO violations is to outsource social media screening to a third party such as Sterling. A third-party screening provider can review the social content and identify objectionable posts that would disqualify a candidate (such as illegal drug use, racism, ethnic intimidation, or violence), while screening out any protected class information. Third-party vendors that provide social media screening services can objectively apply an employer’s pre-determined criteria, mitigating claims of unfair bias on the part of hiring managers. In addition, the use of technology and specialized products can greatly improve efficiencies and reduce the risk of human error.
Social media information is easy to manipulate. The content is typically user-generated, and is often curated to reflect the image that the user wants to project. Profiles are easy to manipulate and spoof, and employers risk making adverse hiring decisions based on inaccurate information. Again, this is where use of a third-party provider can lend value to the process. Combing through the social media web takes a tremendous amount of time and expertise, and without the proper training an HR department may find itself overwhelmed with a task that can better be handled by technology and third-party experts. Companies that specialize in social media screening have a duty to provide accurate information under the FCRA, and typically have systems in place to confirm content is linked to the subject and is valid. Keep in mind that if an adverse decision is based on a consumer report for social media, employers need to follow pre and final adverse action processes, following federal FCRA notice requirements and any state specific laws as well.
Ethics and Culture
When it comes to social media screening, employers should take into account ethical and cultural considerations. Some commentators are raising questions about the fairness of using social media,5 and point out that recruiters may be acting on information without procedural guidelines and due process for candidates. Recruiters could unwittingly violate privacy laws, anti-discrimination laws, and the Fair Credit Reporting Act. Even in situations where recruiters have been trained and the organization has clear and consistent policies, social media screening could be perceived in a negative light by potential candidates. Candidates may have little or no control over negative comments or photos posted or tagged on their profile by other people. Strong opinions, grammar, and even a propensity to post selfies could be viewed negatively or in a positive light, depending on the organization and the role. Employers should take into account the culture of the organization and the type of candidates they want to attract, as well as expected long-term loyalty and trust when designing a program. A well-defined program that is transparent and fair to employees is more likely to be successful and achieve the goals of risk mitigation, while maintaining high levels of employee satisfaction and a positive candidate experience.
In Summary, Employers Need to Consider the Following Key Take-aways:
- Negligent hiring and negligent retention claims can result from failure of the duty of care to screen employees — particularly when information is public and readily available.
- Privacy laws may limit employer access to non-public information and protect candidates by requiring the consent of the subject.
- Accuracy of the information can be difficult to ascertain, and employers need to have policies to ensure they are following the Fair Credit Reporting Act when making adverse decisions based on social media screening reports.
- Anti-discrimination laws pose challenges for social media screening, due to the likelihood that protected class information will exist in social media profiles.
- Working with reliable and trusted service providers may help to address risks. Consult with your legal counsel before rolling out your social media screening program.
- Stay consistent with your culture and values to mitigate your risks while demonstrating your respect for candidates and employees.
 Inc.com cites a 2020 CareerBuilder survey that estimates 70% of employers use social media to screen candidates. https://www.inc.com/melanie-curtin/54-percent-of-employers-have-eliminated-a-candidate-based-on-social-media-time-to-clean-up-your-feed-and-tags.html
This blog post is part of a Compliance blog series, diving into compliance trends, best practices, and updates.
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