The FTC Weighs in On Social Media for Background Screening

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A recent blog article by Littler Mendelson points to the growing storm surrounding the use of social media searches in employment screening.

In a recent statement by the Federal Trade Commission (FTC) on the use of a “social check” service, the FTC stated that a third party social checking service “is a consumer reporting agency because it assembles or evaluates consumer report information that is furnished to third parties that use such information as a factor in establishing a consumer’s eligibility for employment.”

Plainly stated, this means that companies that rely on a social background check service for information about job candidates must comply with the FCRA.

This conclusion could impact a large number of employers. According to the 2011 HireRight Employment Screening Benchmarking Report, more than 50% of employers surveyed are currently using social media for recruitment or are planning to use it in the future. Additionally, one in five employers surveyed either currently use information gained from social networking sites or are planning to use it during background screening.

While it’s not known exactly how many companies perform social media background checks in-house, thereby not making them subject to the FCRA, any organization that uses outside parties would be subject to the FCRA.

According to Littler, companies that do use third parties for social background checks should consider the following steps to help ensure FCRA compliance:

  1. Update the notice and authorization documents provided to applicants to encompass social media before searches are requested.
  2. Ensure that applicants eliminated as a result of social media searches receive pre-adverse action notices along with the report received by the employer.
  3. Upon rejecting the applicant, send a final adverse action notice to the applicant containing the language required by the FCRA.

Reliability and Compliance Concerns
The guidelines sound straightforward, however, practical problems arise. What social media information should be highlighted in the first place? Is the information relevant to the hiring decision? Many posts contain information that employers can’t legally consider in hiring decisions such as protected and lawful off-duty conduct or disabilities. There is also some information that clearly disqualifies an applicant from employment. But a great majority of the data falls somewhere in between.

Reliability is another critical issue in using social media checks to evaluate candidates. Unlike most sources of screening information, social media checks have no presumption of accuracy since many comments are made by third parties and the applicants’ own entries can be forged. Organizations should consider providing a pre-adverse notice to an applicant even if there is no legal obligation to do so or potential employees could be lost.

While there are many benefits to the use of social media checks in recruiting, it remains a slippery slope when using it for employment background screening. Organizations should remain cautious when utilizing social media checks by continuously evaluating if the benefits received by using it for employment background screening outweigh the risks of discrimination or potential non-compliance.

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HireRight is a leading provider of on-demand employment background checks, drug and health screening, and electronic Form I-9 and E-Verify solutions that help employers automate, manage and control background screening and related programs.

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The HireRight Blog is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.