Social Media Screening Under Fire by Congress

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Social media employment background screening

While the use of social networking is widely regarded as a valuable tool for recruiting, its use as a source of information for pre-employment background screening remains unresolved. However, the potential risks in using social media for background screening are clear.

The incorrect gathering or use of information obtained from social media profiles could expose an organization to compliance risks, including claims of discrimination. Additionally, the quality of the information obtained from social media sources and how that information is used must also be carefully considered.

The rising concern of using social media in background screening is highlighted by the scrutiny it is receiving from Congress. Recently, U.S. Senators Richard Blumenthal (D-CT) and Al Franken (D-MN) expressed their concern that the gathering and reporting of social media activity to employers could harm individuals seeking employment for positions where a background check report includes social media information.

Concerns with Accuracy and Rights
The Senators’ concerns revolve around the accuracy of social media information provided to employers by third party providers, consumers’ right to online privacy, website terms of service and intellectual property violations.

Some of the concerns include:

  • How is accuracy determined for information collected from social media sites?
  • Are there processes in place for applicants to dispute information that is collected?
  • Is consent obtained from the job applicant before the search is performed?
  • How are terms of service and intellectual property violations addressed for social networking sites that prohibit the reuse or sale of the content without prior consent?

Implications for Employers
According to the 2011 HireRight Employment Screening Benchmarking Report, more than 50% of employers are using or are planning to use social media for recruitment purposes. Thus, the Senators’ letter is part of a growing trend by the federal government to closely scrutinize employers’ use of social media.

In fact, the National Labor Relations Board (NLRB) has taken an increased interest in employers that discipline or terminate employees based on their social networking activities.

In addition, the Federal Trade Commission (FTC) recently concluded that an employment background screening company that collects social media information is considered to be a “consumer reporting agency” under the Fair Credit Reporting Act (FCRA).

The implication for employers is plainly to evaluate whether to rely on social media when making employment decisions and if so, how to do so while remaining in compliance with laws and reducing the risk of a claim. In this regard, employers should consider the following three best practices:

  1. Review whether and how you are using social media and any compliance obligations associated therewith (e.g., compliance with the FCRA).
  2. Consult with experienced labor counsel before disciplining or terminating an employee for social networking activities.
  3. Consider the reliability of information obtained from social media sites, which may be less reliable than traditional background screening sources (such as court records), to avoid potentially losing opportunities with otherwise suitable candidates.
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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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