Screening Candidates' Social Media May Lead to TMI, Discrimination Claims

​Recruiters and hiring managers can't seem to stop themselves from perusing candidates' social media profiles during the hiring process, a practice that can save employers from making bad hires but that carries significant risk.

"Screening social media allows employers to look inside a person's head to see who a candidate really is," said Les Rosen, founder and CEO of Employment Screening Resources, a background screening firm in Novato, Calif. "But if you use it incorrectly, there's a world of privacy and discrimination problems that could arise," he said at the recent Society for Human Resource Management 2018 Talent Conference & Exposition.

[SHRM members-only online discussion platform: SHRM Connect]

Employers need to be especially aware of TMI—too much information—when looking at candidates' social media. That's because recruiters and hiring managers could become knowledgeable about things that should not be considered for employment purposes.

" 'TMI' means you are looking at that applicant, and by looking at their social media site or perhaps a photo or something that they have blogged about, you are going to learn all sorts of things as an employer you don't want to know and [that] legally cannot be the basis of a decision," Rosen said. Race, color, national origin, religion, gender, disability, age and citizenship status are all protected characteristics. If a candidate feels he or she was not hired because of one of these traits, that person can sue for discrimination.

Rosen said that on the one hand, social media searches can be valuable due-diligence tools and a critical part of pre-employment background screening. Candidates could be found espousing or promoting criminal activity and hate speech, or making derogatory comments about co-workers or employers. But broadly screening social media can be problematic because information found online can carry legal risk and may not even be true.

"Screening social media can lead to allegations of discrimination under Title VII [of the Civil Rights Act of 1964] and numerous state laws if the candidate does not get the job," Rosen said. "To avoid a lawsuit, you need objective, consistent and documented procedures to demonstrate information found online is a valid predictor of job performance and [is] used fairly."

Another issue is treating all applicants consistently. If employers are performing social media searches in an ad hoc way, with no written policy or standard approach, an applicant who is not hired or interviewed can potentially claim discrimination. And once the employer has become aware of a candidates' protected characteristics, it is difficult to prove that the information was not considered in the hiring decision, Rosen said.

The potential for discrimination exists even with people who don't know they are being screened, like passive candidates, he added.

While there is not yet a clear law or case precedent in this area, employers must be very careful when using social media to conduct employment screening. Absolutely do not attempt to manipulate a social media site by creating a false identity and connecting with the candidate to gain access to his or her profile, Rosen said.

He recommended:

• Getting consent from the job applicant before performing the search and screening only after a job offer is made, contingent upon completion of the check.
  
• Establishing standard screening practices to show decisions are made objectively based on the job description, and documenting when a person meets the objective criteria and why he or she was not moved forward.
  
• Performing social media checks through a third party behind an "ethics wall." "They don't make the hiring decisions and provide only job-related data to the decision-maker after there has been an offer," Rosen said. All protected characteristics are scrubbed.
  

Using Background Screening Firms

Employers can go to background screening firms to conduct social media checks and assemble a report on the applicant's online identity. However, employers should realize that background screening firms must follow the same federal Fair Credit Reporting Act (FCRA) rules regulating more traditional information sources such as criminal record checks and credit report checks, Rosen said.

"Social media background checks need to have full FCRA compliance, which requires a background screening firm to maintain reasonable procedures for maximum possible accuracy," he added. "Since a background screening firm has no way of knowing if all of the online information is accurate or even belongs to the applicant in question, it is difficult for screening firms to perform this service [in a manner that's] consistent with the FCRA."

Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.