Social media background checks on potential job candidates have raised some red flags in the legal community, which has created uncertainty for companies on the issue.
However, there are legal and proper ways to conduct social background checks that can benefit the employer while protecting the job seeker. One thing a company or recruiter should do upfront is include provisions in employment applications that demonstrate a job candidate's consent for the company or recruiter to search social networking sites as part of the hiring process, says Steve Friedlander, a partner in the Employment Group for the law firm Cooley LLP in San Francisco.
In addition, Friedlander suggests that human resources departments should strongly consider having a social media policy as part of their overall information technology resources policy to help avoid legal and privacy issues that might arise with the monitoring of social networking sites by a company. Paying attention to the applicable laws is critical for HR managers and recruiters, he said. For example, under the Fair Credit Reporting Act, companies may need to get consent from candidates to do a social media background check if conducted by a third party, such as a recruitment or staffing firm or background check company.
Another area of concern, Friedlander says, is discrimination law. 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, Friedlander says.
"If, for example, during a social media background check you see an applicant is in a protected category and the company determines not to offer the job to that person, the applicant can argue that he or she was not hired due to his or her protected status rather than for legitimate business reasons," Friedlander says.
"As a result, it is prudent to have someone besides the decision-maker or hiring manager do the social media checks and not reveal any protected status information."
He added that employers in states with "lifestyle discrimination statutes," which prohibit action by companies against existing or potential employees for legal, off-duty conduct, have to ensure that they do not run afoul of such statutes in connection with their employment decisions based on social media background checks. In addition, employers that plan to check social media sites for existing and potential employees should do it on a consistent basis, Friedlander says, in order to be fair as well as to protect themselves from potential legal risks as a result of disparate treatment or disparate impact claims.
"Social media is an emerging area where new laws are being created and a web of potentially applicable laws now exist, so it's important a company talks with its legal advisers about how to proceed in this arena and institutes appropriate policies," he added.
While there are legal pitfalls to avoid in using social media for background checks, Friedlander said it's commonly done and can be an effective screening tool in the hiring process.
"Companies just need to have their ducks in a row and have their processes and right polices in place," he said. "Once you have that, gathering information from social media sites is an important component to modern employment practice."
Andrea Siedsma is an Encinitas, California-based freelance writer. To comment, email firstname.lastname@example.org.