"The next frontier of background checks are social media background checks." Sara Hutchins Jodka explained in a recent BLR webinar. In fact, SHRM recently reported that 56 percent of employers use social media in the recruiting process already.
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A recent CareerBuilder survey found that 43 percent of hiring managers who research candidates on social media have found information that resulted in them not hiring a candidate. This is up 9 percent from the same survey in 2012.
Pros and Cons of Conducting Social Media Background Checks
"The good thing about social media is, for the most part, we learn more about a potential hire's unfiltered personality. That can reveal whether the person is a good fit with corporate culture. But on the flip side, it might uncover some serious missteps or questionable judgments." Jodka explained.
One of the first concerns is false information. Not everything on the internet is true. And sometimes you may find information about someone with the same name who is not actually your applicant. On top of that, applicants are getting more computer savvy. They know you're looking at them. They can create fake profiles to look better, while protecting their real profiles.
A bigger concern, however, is that you may find information that you shouldn't see because it should not be part of the hiring process.
"Some information that you view online when making hiring decisions is simply illegal to look at. You may discover someone's religious affiliations; you may find someone's involved in a cancer-related cause. This also may mean that you discover health information that you're not allowed to access." Jodka explained. You could easily discover someone's health information or their inclusion in a protected group.
A new risk is GINA (Genetic Information Nondiscrimination Act). Finding out some types of health information is the equivalent of getting genetic information, such as finding out the applicant's mother has breast cancer through a social media post about a cancer research fundraiser, for example.
GINA says that an employer may not "request, require, or purchase genetic information of an individual or family member of the individual," which includes information about an individual's medical history. It even specifically addresses the internet because the term "request" includes conducting an internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information."
This obviously presents a major risk for employers. However, GINA also includes two exceptions in which the employer will not be held liable for the discovery of such information:
- Inadvertent Acquisition Exception. This exception applies if the information is obtained through authorized access. It doesn't apply if additional information is elicited. Do not probe!
- Commercially and Publically Available Exception. This exception states that if the information is commercially and publically available, then the exception applies. In other words, if permission is required to get more information, back off or risk being in violation of GINA.
These risks outweigh the benefits of conducting social media background checks for some employers. Others are looking for ways to mitigate the risks while still getting the benefit of improved screening.
For more information on conducting social media background checks, order the webinar recording of "Conducting Legally Sound Background Checks: FCRA Requirements, EEOC Guidance, and Other Recent Developments." To register for a future webinar, visit http://store.blr.com/events/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.