The Legal Landscape of Social Media Screening – What Employers Need to Know

By on March 28, 2023

As social media continues to grow in importance, employers must consider a variety of legal obligations when conducting the screening. It’s also important to ensure your screening vendors understand the intricacies of federal and state laws.

Using social media for screening can be an effective way to reduce the risk of hiring bad employees. However, the process must be legal and consistent to avoid liability.

Privacy Laws

social media screening is a great way to find qualified candidates, but it can also put your company in legal jeopardy if you’re not careful. Several privacy laws can impact the information you access during a social media search, and it’s important to understand them before using the search as part of your hiring process.

The main concern is that the information you use in a social media search can be considered employee data under some states’ laws, which could be in the scope of their privacy protections. In addition, some states have laws that prevent employers from asking for passwords to an applicant’s personal social media accounts or requiring employees to provide passwords to their social media accounts.

These laws can be a severe complication for employers with employees in different states, regions, or countries. For instance, if a candidate works in Brazil and the employer conducts a social media search on that person and comes up with sensitive information, the employer may have a case against the candidate under the Equal Employment Opportunity Law (EEO) in that country or region.

For this reason, it’s important to get permission from your candidate before searching and only pull posts they made publicly. This is required by FCRA guidelines, which are the same as when conducting a background check, and ensures that the information you collect legally complies with the state’s law.

Privacy Laws

Fair Credit Reporting Act

The Fair Credit Reporting Act, which became law in 1970, protects your rights regarding credit reporting agencies and the companies that furnish your personal information. It regulates how these agencies collect and share information and gives you the right to check your credit report for free once a year.

It also allows you to dispute inaccurate or incomplete information in your credit file. For example, you can challenge a creditor’s claim that you owe them a debt, even though the debt was paid or not owed.

You can also request a free copy of your file disclosure from the credit bureaus or consumer reporting agencies. This document details all of the information in your credit file. You can request this document once a year and, if you find inaccuracies, dispute them in writing with the agency that supplied the information.

The FCRA also requires all creditors and furnishers of credit information to inform you of any errors they may have in your report. In addition, it requires credit reporting agencies to investigate and correct any mistakes they discover.

Employers who use social media background checks in their hiring processes must comply with the FCRA when screening candidates for employment. This means that they should obtain written consent from applicants to review their social media and follow the FCRA’s guidelines regarding what can be included in a report and who can receive it.

An FCRA-compliant partner can screen social media for negative content and help you identify job applicants or employees who might not be a good fit for your company while following all the laws that protect your company’s confidential information. Contact Cisive to learn how a social media background check can benefit your business.

Anti-Discrimination Laws

While a social media background check might seem easy to find out if an applicant is a good fit, it can have negative consequences. The legal landscape of social media screening is complex, and taking the right steps to avoid pitfalls that could lead to costly lawsuits is important.

First, it’s important to understand that most anti-discrimination laws prohibit employers from discriminating against job applicants or employees based on a protected class. This includes race, religion, sexual orientation, gender, disability, age, and national origin.

The Equal Employment Opportunity Commission (EEOC) often enforces these anti-discrimination laws in the workplace. They prohibit employers from discriminating against employees or job applicants based on race, color, national origin, religion, sex, pregnancy, disability, genetic information, or age.

In addition to these federal and state laws, local governments, unions, and other businesses also have anti-discrimination laws that can prevent employer actions against the law. For example, the NLRB has issued decisions that may require employers to obtain written consent before screening applicants based on union affiliation or support.

State Law

While social media screening has become a common part of the hiring process, it is important to understand the legal landscape and how state laws may affect your business. In particular, employers should be aware of state privacy laws that apply to collecting, using, and disclosing candidate information obtained through social media screening.

The most effective way to determine what state law governs a particular issue is to use secondary sources, such as a state legal encyclopedia, treatise, or practice guide. Look for a state, session law number, or code to identify which statutes apply to your question.

States often have different privacy laws, and some have passed specific anti-discrimination laws that impact social media screening. These laws are particularly important if you screen candidates based on race, gender, or disability.

Additionally, social media screening must be done in compliance with the Fair Credit Reporting Act. Ensuring that you have an accurate, up-to-date consumer report for each candidate you use is critical.

Employers should consider a thorough social media screening policy to explain when and how the search will occur, by whom it will be conducted, and what information is considered job-related and non-discriminator. This should include a specific list of sites to be searched and how the results are to be presented and used.

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