Social media screening – Your questions answered

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Social Media Screening - HireRight blog 2019

“I am not sure what ‘social media screening’ means. Is it legal to screen social media accounts of an employee or candidate?”

What counts as social media (for the purposes of social media screening)?

This means any social media platform such as Facebook, Twitter, Instagram, or even blogs. This should be distinguished from a profile in the media that is available in a public forum, such as legitimate media reports on behaviour.

Market practice – What are businesses already doing?

It is becoming increasingly common for employers to review a candidate’s social media footprint as part of the recruitment process. A recent ACAS survey found that 61% of employers were carrying this out.  However, 58% of candidates questioned confirmed that if these checks were carried out without their consent then they would be “angry” i.e. risk of claims should jobs not be awarded based off social media findings.

As a general rule, employers are only looking at the social media profiles of candidates who will be in public facing roles.

Key risks of social media screening to the employer

The key risk is that whilst a check of social media is carried out, the employer could come across information that is considered as “protected characteristics” including but not limited to:

  • marital status
  • pregnancy
  • dependents
  • colour/ethnicity
  • religion
  • sexual orientation

A candidate could subsequently claim that a decision not to hire them was based on these characteristics and is therefore discriminatory.

Social media screening: Data privacy issues

There are also privacy issues. The Information Commission Office (ICO) in the Employment Practice Code already sets out a number of requirements for vetting and these are equally applicable to any social medial searches. It would be recommended that any checks were carried out in accordance with the following guidelines:

  • Inform the applicant as early as possible in the process that a social media check will take place.
  • Provide the candidate with the opportunity to comment on the findings (this is particularly important where there may be name matches).
  • Any search should be proportionate: clearly if the candidate is to take up a prominent or public-facing role they will demand more scrutiny and also be subject to more scrutiny, however this is not the case in less prominent roles.
  • The actual search should be taken as late in the process as is possible and only at the point the candidate is either short-listed for the role or has been given a conditional offer.
  • No access to social media should be gained by deception. This includes either trying to become ‘friends’ with the candidate or asking for passwords and usernames to gain access to do a full review.

Summary

  • There are no specific laws around social media reviews so existing employment and data privacy laws will apply.
  • If a social media check is to be carried out the candidate would have to be informed that social media footprints will be reviewed as part of the pre-employment vetting. This notification should take place as soon as possible during the process.
  • Any social media check should be proportionate.
  • A prospective employer should avoid making any employment decisions based on a social media check due to the risk of discrimination claims.
  • A candidate should be afforded the opportunity to comment/confirm findings.
  • Social media checks should only be made against the social media footprint that is available in the public domain.
  • The social media check should take place as late in the process as possible, only once on a short-list or conditional offer is made.
Caroline Smith

Caroline Smith

Caroline is a UK qualified lawyer with over 17 years’ experience and currently serves as HireRight’s Deputy General Counsel for the EMEA and APAC regions. When not “lawyering” or writing blogs, Caroline can be found striking yoga poses in remote locations such as Mongolia and Bhutan.

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The HireRight Blog is provided for informational purposes only and should not be construed as legal advice. Any statutes or laws cited in this article should be read in their entirety. If you or your customers have questions concerning compliance and obligations under United States or International laws or regulations, we suggest that you address these directly with your legal department or outside counsel.

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