Social Media Screening: What Are Some Legal Concerns For Employers?
HireRight Associate Councel Alonzo Martinez talks about legal concerns that employers may have when considering a social media screening program.
Social media screening is gaining popularity among employers and has become an increasingly common part of the background screening process. In fact, respondents to the 15th Annual HireRight Global Benchmark Report, consider social media screening as the service best suited to help reduce the risks associated with employing remote workers. Social media screening can be a useful tool both as part of the pre-employment process and when used with periodic rescreening post-employment.
Despite the growing popularity of commercial screening solutions, HireRight’s report shows that 28% of North American respondents admitted to conducting web searches and reviewing their candidates’ public social media profiles prior to conducting interviews - a number that is expected to grow this year. This process of self-administered cyber sleuthing, however, can be met with legal concerns.
For employers that self-administer social media screening complying with state privacy laws should be a concern. Five states have passed privacy laws, with one state, California, addressing data collected for employment purposes. Additionally, employers must be wary of Equal Employment Opportunity (EEO) concerns, as it is important to only consider non-discriminator and job-relevant information throughout the hiring process.
HireRight’s social media screening partner, Fama has developed innovative solutions to help employers conduct social media screening. The Fama platform only considers publicly available information, while HireRight supplements Fama’s artificial intelligence-driven solutions with human oversight. This helps ensures that employers are provided with AI-sourced job-relevant data, that has been reviewed by a human for quality purposes. This multi-layered approach to reporting can help provide protections for both the candidate and the employer.
Overall, social media screening can be a useful tool during the background screening process. Employers must be aware of the legal concerns that come with social media screening to confirm that they remain compliant with state and federal laws in their region. Solutions such as those provided by Fama and HireRight may help employers address these concerns while still report relevant data to help provide a more holistic picture of their candidate or employee as part of their background screenings program.
What are legal concerns for employers with social screening? So I think that legal concerns really fall into three primary buckets. First, being privacy. Second, being EEO issues. And third being the just general nature of screening in a social environment.
So, when we're talking about privacy, there are several jurisdictions that have passed laws that limit an employer's ability to access information related to social media platforms. So what I think is particularly interesting about the Fama platform is that we're really only considering publicly available information.
Publicly available information is something that is open to employers. And from a privacy standpoint, I think that there are other concerns. There are five states that have passed privacy laws. There's Colorado, California, Connecticut, Virginia and Utah. California's law is particularly interesting because it includes [employee data]. (HireRight Note – When reported by a background screening firm and conducted in accordance with the Fair Credit Reporting Act, a social media search is a consumer report and is exempt from the scope of state privacy laws. However, a social media search conducted directly by an employer may be considered employee data which could be in scope of the California Privacy Rights Act).
So, the question of how social media screening and HR data comes into play is something that we'll have to look forward to in the future. From an EEO perspective, I always say that you can't unsee what you've already seen. So utilizing technology that can filter information that is only job relevant is particularly helpful.
And that's where Fama’s overlay of artificial intelligence solutions, along with HireRight’s solution of supplementary machine learning [with human oversight] I think is particularly helpful because you have individuals who are combing through this data to ensure that the information that is job relevant is ultimately provided to employers.
And then with respect to the general nature of social screening, I think we're really evolving to see this be a holistic part of the background screening process. It's very different from where we were years ago. It's something that is supplementary and complementary to other background check products, and I think that that's really where the solution and the technology comes together.
Whether you are reviewing your people risk profile for new hires, or conducting ongoing monitoring of existing staff, you can find out more about our social media screening solutions on our website: Social Media Search.
Release Date: February 23, 2023
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.