Recent statistics reveal over half of all employers are using some type of social media search as a supplement to their screening procedures. While the legal and ethical debate of the screening inquiry has been unsettled more and more employers are asking applicants’ for their Facebook logins as part of the process. Several lawsuits are pending regarding the use of social media in pre-employment purposes. Some of the issues are:

Is it considered a consumer report/investigative report? And, if derogatory information is found and a person is not hired as a result, should this be disclosed on the Adverse Action?

Does the search of the social media imply a consumer report? What legal issues does a direct employer face should they discover derogatory information as opposed to a third party screening company?

What weight should the employer place on the information?

Employers who choose to use social networking sites, must use care to avoid using information in a discriminatory way. Screen all applicants the same way. It may be used to verify previous work history and accuracy. Some things to consider:

As recently as two years ago, a municipality required job applicants to supply username and password information for their social media-related accounts. However, once the word got out it created a firestorm. While it’s not illegal to ask job applicants for access to their password-protected accounts, use caution if you plan on using this part of your screening policy.

Recommended Best Practices for Social Media:

1. Do let applicants know that you’re going to be checking their social-media profiles.

2. Do inform applicants if a third party will be conducting the background check. The Fair Credit Report Act requires applicants to signoff, regardless of whether a password or username is
needed to access your profile, if a third party conducts the check. Fail to disclose to the
applicant that someone other than an employee at your firm (in house) is conducting the
background check, and you open yourself up to a lawsuit.

3. The Stored Communications Act may prohibit sharing user and password information with other third parties without consent.

4. Don’t rely on your company’s social-media policy when it comes to job applicants because
applicants aren’t covered by the same policies as employees.

5. Don’t forget to check with your legal counsel before instituting a new hiring practice connected to social media. This remains a very fluid area with new rules, interpretations and privacy issues.
The courts are usually several years behind technology, however this area appears to maturing and cases are entering the system