Today’s Wall Street Journal has an interesting article about “online sleuthing” and privacy concerns.  Employers use social media when screening candidates for employment and it’s no surprise that police and prosecutors use it as well to tell them something about someone, locate an individual or otherwise track them. Sometimes, law enforcement use social media by “impersonating users or setting up fictitious accounts to gather intelligence or evidence for trials” according to the article.  In a survey cited in the article, “…about 500 local, state and federal law enforcement officers commissioned last year by database provider LexisNexis,Corp. 81% said they actively used social media in investigations. Asked whether creating fake online personas or profiles was ethical, about 80% agreed that it was, 11% were neutral, and 9% disagreed.”

Using this as background, let’s consider the use of social media for employment screening.  There are permissible ways an employer can use social media in this context and impermissible ways to use social media.  There are background screening companies who operate under the Fair Credit Reporting Act (FCRA) and lawfully provide such information, but the concern comes when employers and/or individuals conduct their own, informal checks on social media when considering an applicant or employee.

In the employment context, an employer likely blurs the line when they do the screening in-house and consider information or factors about an individual that may lead to a discriminatory employment practice.  Say an employer searches social media to learn more about a candidate and learns they are an African American woman and factors that into their hiring decision or decision not to call the candidate in for an interview.  That could be a violation of Title VII of the Civil Rights Act as an unlawful employment practice.  In fact, the EEOC has addressed the use of social media.  This quote sums it up: “… in response to a letter from Senators Charles Schumer and Richard Blumenthal, the EEOC reiterated its long-standing position that personal information-such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information. Quoting from a 2010 informal discussion letter from the EEOC, Miaskoff noted that ‘the EEO laws do not expressly permit or prohibit use of specified technologies. . . . The key question . . . is how the selection tools are used.'”  Read more on the EEOC here.

If you want to use social media for employment screening purposes consider these factors:

  1. Hire a reputable background screening company operating under the FCRA.
  2. Set parameters around what you would like reported.  Typically these types of background checks will be limited to user generated content which exhibits violent or sexually explicit activity, hate speech or potential illegal activity such as drug use.  They can also report positive information such as charitable or volunteer participation, educational recognition and achievements and so on.
  3. It is important that the content being reviewed and considered is user generated and not third party commentary, as the latter cannot be verified.
  4. An employer cannot directly or indirectly violate a social media sites terms and conditions or terms of use and go “behind the curtain” for information.  Only use what is publically available on the internet.  Don’t “friend” someone or their friends to learn more about a candidate.  Even if it may not be illegal, it’s creepy.
  5. Don’t ask an employee or job candidate for their password so you can look at their social media account.  In a handful of states that is illegal.

Bottom line, an employer can use social media to screen candidates.  However, be aware of restrictions around its use and use a reputable background screening company for this purpose, one which provides these reports under the FCRA.