legal minefield

Social Media Background Checks: Clever Tool or Legal Minefield?

social media background checksOk, I need you to be honest with me.   How many of you have narrowed your hiring decision to a single candidate and then found yourself bouncing from Facebook to YouTube to Twitter and the blogosphere?  A Google search of the applicant’s name? Really?  Come on, the internet is the Wild West 2.0.  A wide open, unregulated and unfiltered expanse.


What does that look like?

  • 160+ Million Blogs
  • 80K New Blogs Daily
  • 75 Million Tweeters
  • 550 Million Facebook Users
  • 67 Million MySpace Users
  • 41 Million Linkedin Users
  • 490 Million YouTube Users
  • 92 Billion YouTube Views Per Month

Wow!  An organization would be crazy not to be peaking in the social media window.

Don’t you agree?  The benefits of social media background checks are obvious:

  • Documents Due Diligence:  Reduces negligent hiring and negligent retention.
  • Literally Look Inside Applicant’s Head:  We get an unvarnished look inside the head of an applicant that reveals their thoughts, opinions, hobbies and interests.
  • Unfiltered Character Check:  People have applied the “what happens in Vegas, stays in Vegas” principal to social media.  Nobody is looking but friends, right?  Look at this recent Tweet I found:

twitter background checkWould you like to know if your youth pastor is posting nude photos online?  Do you need any more examples to confirm we should make social media checks a part of our screening process?

Well, hold on cowboy.  Let’s jump on the other side of the fence and take a look around and see what the employment attorneys are saying.

Are there any pitfalls to social media screening?  Yeah, and they can have serious legal consequences.

  • Too Much Information:  May contain photos of applicant that reveals age, race or a disability; or postings might be related to personal religious beliefs or ethnicity.  You may be learning and seeing information that cannot be the legal basis for a hiring decision.
  • Legal Implications of Social Media Screening:
    • Discrimination:  If a decision to not hire is based on race, ethnicity, nationality, marital status, religious preference or age.
    • Privacy:  Yes, even on the internet there can be a reasonable expectation of privacy since most social media sites require “friending” for access.
    • Authenticity:  This could be a huge obstacle with common and even not so common names.  How do you know the social media sites belong to your applicants?  There are many, many people with the same names.  Google yourself.
    • Recent Social Media Lawsuits:
      • Cisco Systems sued after one of their attorney’s blogged about 2 opposing lawyers who had sued Cisco.
      • Georgia School Dist. sued after they terminated a teacher who had a photo of herself drinking a glass of wine on her Facebook page.  It was a vacation photo from Italy.
      • NJ Restaurant sued after firing 2 employees for negative postings about the restaurant on their MySpace pages.

So where does that leave us?

I think we find ourselves in a “danged if we do, danged if we don’t” crossroads and we need to make an educated decision how to proceed.  No doubt there is a ton of information in social media that could be critical to a hiring decision; however, it is a legal minefield that requires a detailed social media policy.

We also have to understand savvy applicants will have a separate identity online.  Clear does not always mean clean.  No mentions in social media could be a red flag.

The bottom line is if you decide to conduct social media background checks, you should not be using your hiring personnel to do the check.  The information must be filtered by somebody outside of the hiring process to ensure hiring teams are not seeing information they are not allowed to see.

What I can tell you is that reputable background screening firms will not be providing social media background checks in the near future.  Why?  Because the Fair Credit Reporting Act requires us to provide accurate information.  This is challenging when determining identity and authenticity is difficult.   And verifying information in a blog post or Facebook page can be impossible.  How do we know this is not cyber slamming against our applicant?

Ok, let’s take a deep breath and exhale.   We may not be able to provide these checks for you, but we can provide detailed training & guidance.

Join us on June 15, 2011 at 2PM EST as our Attorney Steve Koers facilitates a FREE webinar on:  Social Media Background Checks Policy Development

Did you catch that?  An attorney working for FREE.  Better sign up before he changes his mind.

Your Turn:

Are you conducting Social Media Background Checks?  Have you denied hiring an applicant because of social media postings?