Social media has become a prevalent part of our lives in the digital age. It’s not surprising that employers are turning to social media to gain insight into the character and behavior of potential hires. As a result, the question of whether or not it is legal to perform social media background checks has become increasingly relevant. In this article, we will explore the legality of social media background checks and the steps employers should take to ensure compliance with laws and regulations.
The Importance of Knowing the Law
When performing a background check, it is essential to know the laws and regulations surrounding the process. Employers must understand what they can and cannot legally do when conducting a background check, including using social media. Failure to comply with the law can lead to significant consequences, such as fines and lawsuits.
Social Media Background Checks and FCRA
When used for employment, the Fair Credit Reporting Act (FCRA) governs consumer reports by third-party vendors, including background check companies like First Contact HR. These companies must follow strict guidelines when collecting, storing, and reporting consumer information, including conducting background checks. This includes obtaining written consent from the individual being checked, providing a summary of rights, and maintaining the accuracy and privacy of consumer information. The consent form clearly states that the background check results could impact the applicant’s or employee’s employment.
However, suppose no third-party company is hired to conduct a background check. In that case, the FCRA rules do not apply to background checks that are performed using publicly accessible information, such as information found on social media. Social media is considered public information because it is voluntarily posted by individuals and can be accessed by anyone. As a result, information found on social media is not considered a consumer report under the FCRA, and employers are generally free to use this information in their hiring process. However, employers should still be mindful of other laws, such as discrimination, when using social media information in their background checks.
EEOC Guidelines on Social Media Background Checks
The Equal Employment Opportunity Commission (EEOC) has issued guidelines regarding using social media in hiring and employment. The guidelines state that employers can’t use social media to discriminate against applicants based on protected characteristics, such as race, color, religion, sex, national origin, age, or disability. Using this publicly available information to make employment decisions based on protected characteristics might result in a lawsuit or fines for the employer. Employers should also avoid using social media to gather the information that is not job-related or relevant to the position.
Best Practices for Social Media Background Checks
Employers can conduct social media background checks themselves if they are lawful and non-discriminatory. Even though there is no law requiring an employer to get written consent to access publicly available information, it still is prudent to hire a background check company for a social media background check. That way, the background check company will get written consent and ensure that the information used in the process is not discriminatory and that an employer complies with the law. The third-party vendor will ensure compliance with FCRA rules and follow best practices.
There are many other factors for employers to consider when considering hiring a background check company or doing the research themselves. An employer might not be aware of the privacy policies of social media platforms and understand how these policies may impact the gathering of information during a background check. For example, some social media platforms may prohibit the scraping of public data for employment purposes, while others may limit the amount of information that can be accessed.
Another critical factor to consider is the source of information used in the background check. A consumer reporting agency can ensure that any information obtained from social media is accurate, up-to-date, and relevant to the position being applied for. They can also take steps to verify the information obtained through social media and any other information used in the background check.
Conclusion
Social media background checks can provide valuable insight into the character and behavior of potential hires. However, it is crucial to understand the laws and regulations surrounding the use of social media in background checks to ensure compliance with the law. If an employer does their background checks using publicly available information on social media sites, they should under no circumstances have untrained employees conduct the search. Working with a reliable third-party consumer reporting agency like First Contact HR is always recommended to avoid mistakes and to become liable. Don’t let the complexities of background checks and social media deter you from making informed hiring decisions. Contact First Contact HR today to schedule a consultation and ensure a successful and lawful hiring process.