Potential pitfalls of using social media for background checks

Social media use is prevalent for potential employees, so why shouldn’t it be prevalent for background checks? Most employers think it should—the use of social media in background checks has grown steadily in recent years. But what are the risks?

“A lot of employers are vetting through social media. And we know that it’s good because it gives you an unfiltered look at someone’s personality.” Sara Hutchins Jodka told us in a recent CER webinar. This can reveal whether they are a good fit with the corporate culture. It also might uncover some serious missteps or questionable judgments, and employers consider these discoveries to be invaluable.

That said, using social media for background checks comes with downsides. One pitfall is the issue of not knowing whether the information discovered is true.

“We also know that it’s bad, which means people are learning how to use all their privacy protections and they know that you’re vetting them, which means they make up fake profiles and they make up fake things so that you’re more attracted to them.” Jodka explained.

But the risks for employers go far beyond simply finding information that is tough to verify. There’s a very real risk of finding information that should never have entered into the hiring equation in the first place.

“And then there’s the real ugly, and that’s whenever you vet someone on social media and you find out that they are of a protected class (age, race, religion, whatever), and you have now looked at that—cat’s out of the bag, and you can’t take it back.” Jodka noted. What if an employer discovers information such as religious affiliations, race, age, marital status, or disability? What about finding out family medical history?

The main risk here is that if an adverse action is taken against the person (such as choosing not to hire him or her), there could be a rationale to claim that the action was discriminatory. Simply knowing of an inclusion in a protected class creates this risk.

Reducing the risks of using social media for background checks

What can an employer do to reduce the risks associated with using social media in background checks? Here are some tips for employers opting to conduct such screenings in-house:

• Have a written policy in place and follow it.
• Have a dual process in place. In other words, do not let the person hiring be the one conducting the searches.
• Make sure you have consent for the background check, but do not ask an applicant for his or her social media password(s).
• Disclose the sites you may go for information. (This is not a legal requirement, but is recommended).
• Identify the 5 or 10 things that would concern you, such as illegal drug use, graphics promoting hate, criminal activity, propensity for violence, poor decision-making, sexually explicit information, etc. Make sure you’re looking for specific things.

Alternatively, employers may opt to have a third-party complete the social media background check. This is a legal alternative—in 2011, the FTC approved third-party applicant screening based on internet photos and postings. Sometimes companies providing this type of service can find things that others would not since this is their area of expertise. Either way, whoever conducts the background check should work from a list of information the employer has predetermined that they want to find, which can include both positive and negative attributes.

The above information is excerpted from the webinar “Conducting Legally Sound Background Checks: New FCRA Requirements and EEOC Guidance Explained.” To register for a future webinar, visit CER webinars.

Attorney Sara Hutchins Jodka of Porter Wright has significant experience representing employers in all facets of employment-related litigation. Ms. Jodka has drafted company handbooks, workplace policies, and more.