Social Media Screening Remains Hot Topic while CRAs Deal with EEOC and FCRA Concerns in 2019

ESR Top Ten Background Check Trends for 2019

Written By ESR News Blog Editor Thomas Ahearn

Social media screening of applicants will remain a hot topic while consumer reporting agencies (CRAs) performing them deal with discrimination and accuracy concerns in 2019. This trend has been chosen by global background check provider Employment Screening Resources® (ESR) as ninth on the list of “ESR Top Ten Background Check Trends” for 2019 that feature emerging trends in the screening industry.

Employers use social media screening for different purposes. Some use social media to screen candidates before they are hired as part of a background check in order to avoid potential bad hires and demonstrate due diligence. Such checks can reveal workplace misconduct or fabricated credentials. Employers and recruiters may also utilize social media to source candidates and find passive candidates.

Another use of social media screening is to perform “continuous evaluation” of employees once they are hired to guard against insider threats and other workplace issues. Regardless of the use, social media screening presents both opportunities for employers and recruiters to find candidates and to reduce risk, but at the same time, these searches can create a legal minefield of potential liability.

Social media screening that delves into the online personas of applicants and employees will stay in the spotlight as new firms enter the market with new technology. But CRAs will be careful when conducting these searches due to concerns with running afoul with the U.S. Equal Employment Opportunity Commission (EEOC) and the federal Fair Credit Reporting Act (FCRA) since this type of screening can be problematic.

The EEOC enforces Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin. The FCRA promotes the accuracy, fairness, and privacy of consumer information in consumer reports – the FCRA’s term for background checks – and protects consumers from willful and/or negligent inclusion of inaccurate information in those reports.

In April 2018, ESR founder and CEO Attorney Lester Rosen – a noted background check expert – warned attendees at the 2018 Society for Human Resource Management (SHRM) Talent Conference & Exposition that using social media screening on their job applicants can lead to “a world of privacy and discrimination problems,” according to an article written by SHRM Online Manager/Editor Roy Mauer.

“Screening social media allows employers to look inside a person’s head to see who a candidate really is,” Rosen explained during his session about social media screening at the SHRM conference. “But if you use it incorrectly, there’s a world of privacy and discrimination problems that could arise.” Rosen said that employers should be wary of Too Much Information – or “TMI” – with social media.

“‘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. Job applicants can sue employers for discrimination if they were not hired due to traits covered by Title VII.

“Screening social media can lead to allegations of discrimination under Title VII and numerous state laws if the candidate does not get the job,” said Rosen, adding that employers performing social media screening “need objective, consistent, and documented procedures” to show information on social media is a valid predictor of job performance and need to treat “all applicants consistently.”

Rosen said “broadly screening social media can be problematic because information found online can carry legal risk and may not even be true.” He recommended getting consent from applicants after a job offer is made before screening them on social media, establishing standard screening practices to show decisions are based on job descriptions, and documenting when a person meets the objective criteria.

Rosen said CRAs performing social media screening must follow the FCRA. “Social media background checks need to have full FCRA compliance, which requires a background screening firm or other providers of that service to maintain reasonable procedures for maximum possible accuracy,” he said, adding that a screening firm has no way of knowing if all of the online information is accurate or even belongs to the applicant in question.

Rosen also suggested that employers perform social media screening through a third party behind an “ethics wall” that does not make hiring decisions but only provides job-related data to decision makers after a job offer so that all protected characteristics under Title VII “are scrubbed.” SHRM is the world’s largest HR professional society and represents 300,000 members in more than 165 countries.

A survey released by SHRM in 2016 – “Using Social Media for Talent Acquisition—Recruitment and Screening” – found 43 percent of organizations said they used social media or online search engines to screen job candidates, an increase from 2013, while 44 percent of HR professionals agreed that a job candidate’s public social media profile could provide information about work related performance.

The SHRM social media survey also revealed more than one-third – 36 percent – of organizations disqualified a job candidate in the past year because of concerning information such as illegal activity or discrepancy with application found on a public social media or through online searches. Two out of five organizations – 39 percent – allowed candidates to explain any concerning information found.

Rosen said recruiters who use social media extensively may be under the impression that discrimination rules do not apply to them since the candidate does not know they are being looked at. However, EEOC rules apply to all aspects of talent acquisition, including recruiting, and recruiters need to ensure their use of social media is fair, non-discriminatory, and relies on objective metrics and processes that can withstand scrutiny.

If an employer does decide to do social media screening, there are numerous advantages to having a professional third party perform the search instead of doing it in-house. There are companies such as Fama that specialize in these checks. Although many background screening firms offer these services, Rosen cautions that under the FCRA, there are significant issues with a screening firm providing that search.

Employment Screening Resources® (ESR) offers resources that help employers better understand social media screening including a complimentary white paper on the “Ten Potential Dangers When Using Social Media Background Checks”  and a webinar entitled “Top 5 Best Practices for Social Media Background Checks” presented by Ben Mones, Chief Executive Officer (CEO) and founder of Fama.

Employment Screening Resources® (ESR) also can help employers leverage social media as part of their recruiting and hiring processes, implement a compliant social media screening solution, and provide strategies to consider as they make important decisions in developing their social media screening policy. To learn more, visit www.esrcheck.com/Background-Checks/Social-Media-Screening/.

Starting in 2008, Employment Screening Resources® (ESR) has selected background check trends that have impacted the future of the background screening industry. Each trend will be revealed on the ESR News Blog and also listed on the “ESR Top Ten Background Check Trends” web page which is available at www.esrcheck.com/Tools-Resources/ESR-Top-Ten-Background-Check-Trends/.

Employment Screening Resources® (ESR) is accredited by the National Association of Professional Background Screeners (NAPBS), undergoes annual SOC 2® Type 2 audits, was named to 2018 HRO Today Magazine Baker’s Dozen for Top Pre-Employment Screening Service, and won the 2018 HRO Today Tektonic Award for innovative and disruptive background screening technology. To learn more, visit www.esrcheck.com.

ESR Webinar on Top Ten Background Check Trends for 2019

ESR founder and CEO Attorney Lester Rosen – a noted background check expert and author of “The Safe Hiring Manual” – will also host a live complimentary webinar entitled “ESR Top Ten Background Check Trends for 2019” that will take place on Wednesday, January 30, 2019, from 11:00 AM to 12:00 PM Noon Pacific Time. To register, visit https://register.gotowebinar.com/register/5840930517922184451.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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