Do Social Media Check: The Right Way

One of the most content-rich sources for background information today is social media. Its expanding presence in our daily lives makes it natural place to search for information on its 800 million users. Moreover the Federal Trade Commission (FTC) has decided that the year-old startup Social Intelligence Corporation operates within the guidelines of the Fair Credit Reporting Act (FCRA).  This means that social media background checks may become a regular part of the pre-employment screening process.

A “social media background check” can mean many things.  It can be as simple as checking out a Facebook profile or as complicated as hiring someone to search for every bit of social media about an individual. The term “social media” in these guidelines captures a broad range of information such as social networking sites, blogs, micro-blogging, and file sharing sites (including photographs and video).

But what employers don’t understand is that this background-screening process could actually harm the firm by violating employment discrimination laws and in turn, land them in every business owners’ worst nightmare: a lawsuit. And while no business wants to be slapped with a lawsuit, small businesses and startups especially can’t afford the bad press or legal fees.
Certain ground rules need to be followed by companies to avoid unnecessary tangles while using social media as a means to check an applicant or employee.

  • To begin with the company should make provision to attain consent from the applicant to search social networking sites to gather information about the candidate.
  • Any company that might use social media to screen an applicant should have a social media policy chalked down. This can go a long way to help avoid legal and privacy issues that might arise.
  • Just as a hiring manager shouldn’t ask a job candidate questions relating to race, gender, sexual orientation, marital status, religion or other protected areas during an interview, they also shouldn’t look for this type of information on social media sites
  • Recognize that any information collected about individuals is personal information or personal employee information and is subject to privacy laws, whether or not the information is publicly available online or whether it is online but subject to limited access as a result of privacy settings or other restrictions.

The Office of the Information and Privacy Commissioner for British Columbia has released a paper Guidelines for Social Media Background Check where certain actions that are to be avoided are listed out.

  • Wait until after they conduct a social media background check to evaluate compliance with privacy legislation.
  • Assume in advance that a social media background check will only retrieve information about one individual and not about multiple individuals
  • Perform a social media background check from a personal account in an attempt to avoid privacy laws.
  • Attempt to avoid privacy obligations by contracting a third party to carry out background checks.
  • Perform a social media background check under the assumption that individuals will never be able to find out about it.  For example, an individual could use web analytics to try to determine what IP address accessed their personal information

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Any issues regarding compliance and obligations under United States or International laws or regulations should be addressed through your legal department or outside counsel.

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