It’s no real secret that on a daily basis as part of the vetting process recruiters and hiring managers are putting candidates' names in search boxes from Google and Facebook to LinkedIn and Twitter. Everyone knows they shouldn’t be but they still do. Many recruiters and HR leaders would not be surprised to know that many hiring managers also do.
A candidate’s publicly available online information can reveal a lot about a job candidate, from their endearing personality traits and hobbies, their protective class status to their controversial opinions and political affiliations. But while unrestricted access to a candidate’s public social media profiles is often a simple Google search away, accessibility isn’t a free pass to engage in unethical or potentially illegal hiring practices and it really must stop. It is an invasion of the rights of the candidate, especially the right to consent to the search.
To be fair, due in part to a lack of updated guidance and the relative novelty of the practice, the legality of social media background screening isn’t well understood by most recruiters and hiring managers today. Nevertheless, it’s become incredibly common. But it needs to be done in a compliant way that ensures the protection of the candidate and the employer and in adherence to an applicant’s rights under the Federal Fair Credit Reporting Act (FCRA).
The good news is that, when done correctly, with a third party like Fama, and in compliance with adverse action laws, online and social media screening is a powerful tool for determining the hireability of a candidate. Online screening then becomes a perfectly legal and advisable hiring practice. In this blog, we’ll cut through all the unnecessary confusion regarding the legality of social media screening. First we will define in clear terms how problems tend to arise, and then provide the steps to create a fully compliant, worry-free screening process.
Understanding the Controversy
First of all, it’s critical to establish what makes social media screening so controversial in the first place. Considering the fact that a large portion of social media profiles are accessible to the public, it’s difficult to argue that it has much to do with an invasion of privacy. Similarly, it’s often pointed out that what job applicants post on their public social media profiles is a personal choice, and much of that information might be of interest to an employer, whether it reflects positively or negatively on their ability to perform the role in question.
In fact, things like education, work history, extracurricular activities, and hobbies feature prominently on the average social media profile, all of which are commonly taken into account during the typical hiring process. To this last point, the controversy surrounding social media screening doesn’t stem from employers accessing information that would otherwise be evaluated during the interview process, but rather accessing information that they have a legal and ethical obligation not to take into account.
We are talking, of course, about legally protected categories, which include traits like race, ethnicity, gender identity, sexual orientation, disability status, and religion, among others. This is where the core issue begins to emerge; social media profiles, perhaps more than any other source of information commonly reviewed by employers, inherently reveal a number of protected categories immediately upon being viewed.
In a 2018 survey by CareerBuilder, 70% of employers said they regularly review social media profiles as part of the hiring process, with 54% saying they’ve rejected applicants based on their review. What the survey doesn’t tell us, however, is how many of these profiles were accessed directly by hiring managers who have a legal obligation not to consider protected information.
When used correctly online screening can reveal positive workforce traits like compassion or open-mindedness, or negative ones like intolerance or racial bias. The key is ensuring the information is being considered in the context of its potential impact on the workplace or the individual’s ability to perform in the specific role.
In a 2021 article published by Harvard Business Review, this point was summed up nicely by Chad Van Iddekinge, a professor at the University of Iowa, regarding a research study he conducted on social media screening practices: “One of the hallmarks of legal hiring practices is that they focus on behaviors within the work context,” said Iddekinge. “There should be a clear distinction between what people do during work and what they do outside of it.”
The Importance of an Independent Screening Partner
Now that we’ve established the common pitfalls of social media screening as it relates to legality and compliance, it’s time to look at a few best practices, as well as a potential overarching solution to achieving a fully compliant screening process.
Before we address issues related specifically to social media-based screening processes, it’s valuable to understand that any and all background check methods should follow a clearly established set of rules. This was one of the first points expressed to Fama in a recent conversation with Pam Devata, a leading employment attorney in the U.S.
“In general, the same rules apply whether you are using social media or more traditional methods for conducting background checks,” insisted Devata. “The keys are consistency, accurate record keeping, ensuring data accessed is not legally protected information prohibited from being used in employment decisions, and that any decisions are rooted in business necessity.”
Before even attempting to treat the nuanced issues related to social media screening, it’s important to establish consistent, generalized hiring practices across the business, and to ensure you have a process in place for recording and tracking all pre-employment decisions and FCRA-required disclosures. Consistency and accurate record-keeping will put you in a better position to address any issues that may arise, but as we’ve already seen, making the best use of Devata’s last two tips may be slightly more challenging when it comes to social media screening.
To reiterate, the most common legal issues that arise in social media screening are the inclusion of protected categories and the tendency for non-business-relevant information to seep into the decision-making process. Fortunately, not only are these issues easier to solve than you might expect, they can both be addressed by implementing a single solution: The introduction of a trusted, independent social media screening partner.
The first reason behind this solution is fairly straightforward; by having a trusted professional conduct the screening process independently, you immediately overcome the issue of revealing protected categories. As for the second concern, Fama has built in compliance filters so you only see job-relevant information in reports.
Moreover, at Fama, we believe in going beyond providing bare minimum compliance protections, which is why we utilize ethical AI and machine-learning technology in our screening efforts. Every report is reviewed by our team to ensure accuracy. This allows us to provide constantly improving screening solutions to all of our partners, in terms of both compliance and customization.
At the end of the day, social media screening is bound to remain a controversial topic for the near future, but in moments when you’re not sure of the legal implications, it’s critical not to fall for the false notion that searching a candidate’s profile on your own is even remotely compliant. At the very least, guaranteed compliance will require the use of an objective, independent third-party screening solution. At the very best, your team can benefit from a partner who delivers not only a fully compliant screening process, but one uniquely tailored to help identify the absolute best candidate for the job.