Written By ESR News Blog Editor Thomas Ahearn

A background check expert speaking at the 2018 Society for Human Resource Management (SHRM) Talent Conference & Exposition warned using social media to screen 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,” explained Attorney Lester Rosen, the founder and CEO of Employment Screening Resources (ESR). “But if you use it incorrectly, there’s a world of privacy and discrimination problems that could arise.”

Rosen presented a session entitled “Social Media Background Screening. Is it Right for My Company?” during the SHRM Talent Conference & Exposition held at Caesars Palace in Las Vegas, Nevada from April 16-18, 2018. He said 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,” said Rosen.

Rosen explained that race, color, national origin, religion, gender, disability, age and citizenship status are all protected characteristics under Title VII of the Civil Rights Act of 1964 and job applicants can sue employers for discrimination under if they feel they were not hired because of one of these traits.

“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 employers “need objective, consistent, and documented procedures” to show information on social media is a valid predictor of job performance.

Rosen also said employers performing social media screening need to treat “all applicants consistently” with a written policy and standard approach or else risk having applicants who are not hired potentially claiming discrimination of their protected characteristics under Title VII, according to the SHRM article.

While there is no clear law or legal precedent in the area of social media screening, Rosen warned attendees at the SHRM Talent Conference & Exposition that “broadly screening social media can be problematic because information found online can carry legal risk and may not even be true.”

Rosen recommended getting consent from the job applicant before performing a social media search after a job offer is made, establishing standard screening practices to show decisions are based on the job description, and documenting when a person meets the objective criteria, according to the article.

Rosen added that background screening firms must follow the federal Fair Credit Reporting Act (FCRA) with social media. “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 said.

“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 consistent with the FCRA,” said Rosen, author of “The Safe Hiring Manual” and “The Safe Hiring Audit.”

Rosen also suggested that employers perform social media background checks 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.”

The article ‘Screening Candidates’ Social Media May Lead to TMI, Discrimination Claims’ by SHRM Online Manager/Editor for Talent Acquisition Roy Maurer is available at www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/Screening-Social-Media-Discrimination-Claims.aspx.

SHRM is the world’s largest HR professional society and represents 285,000 members in more than 165 countries. For nearly 70 years, SHRM has provided resources serving the needs of HR professionals and advancing human resource management. To learn more about SHRM, please visit www.shrm.org.

Download ESR Whitepaper on Social Media Screening

Employment Screening Resources (ESR) – a leading global background check firm – offers a whitepaper entitled “Ten Potential Dangers When Using Social Media Background Checks” to help employers uncover the legal risks of using the Internet for employment screening. To learn more about ESR, please visit www.esrcheck.com.

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.

© 2018 Employment Screening Resources® (ESR) – Making copies or using of any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.