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Are Social Media Background Checks Legal?

Tammy Cohen, PHR, SHRM-CP

August 24 2021

Social media background checks are a valuable resource for finding information about potential new hires for your business that you wouldn’t typically glean from an interview or resume. As these types
of searches become more common, make sure you take your candidate’s privacy rights into consideration to mitigate any concerns they might have.

This begs the question: are social media background checks legal? Yes, but only if you work with a reputable third party, like a background screening company. At InfoMart, our solution checks your candidates’ or employees’ social media profiles and delivers an actionable report to you that has protected class information redacted.

 

Advantages of Social Media Background Checks

It’s a Comprehensive Search— Social media profiles showcase a much different side of a person than an application, resume, or even an interview. This form of background check is a thorough search for adverse social media content from across the internet, not just a short list of the most well-known sites. Properly conducted social media background checks look for workplace safety concerns, such as: demonstrations of racism or intolerance, potentially violent or illegal activity, and sexually explicit material.

Combats Insider Threats— Insider threat incidents can happen at any level within your organization and are typically perpetrated by current and former employees, vendors, or business partners. In their given role, any one of these individuals has or had access to sensitive data, leaving you in a potentially vulnerable position. Implementing social media background checks adds an extra layer of protection to your threat mitigation program by identifying high-risk job candidates and vendors before they gain access, allowing you to safeguard your organizational values while protecting privacy, rights, and liberties.

Protection— Your business’s brand is on display for public opinion. You can further protect your brand with social media screening to weed out any dodgy characters. For example: if you were to unknowingly hire an individual that has sexual harassment charges against them, your brand could take a huge hit. Adding social media background checks to your screening procedures can help protect your company’s reputation against risky employees, minimize the risk of a negligent hire, and serve as another line of defense against internal cybersecurity threats.

 

Risks of Running Social Media Background Checks
In-House

Federal and state laws have restricted permission of data for employers. Employers cannot request logins for social media profiles as it is a federal crime to disregard any social media platform’s terms and conditions. Many social media platforms, such as Facebook and Twitter, include a privacy clause in their statements.

There are also concerns about discrimination, as many candidate’s profiles will have information about their race, gender, age, religion, sex, national origin, and more; none of which can be used as grounds for employment decisions. Conducting social media background checks on your own may expose you to this protected information and can lead to legal and ethical problems, as outlined by the EEOC. For example, when conducting a social media search on your own, you might see that a candidate is a member of a Facebook group about pregnancy, indicating that they might get pregnant in the future, so you mentally disqualify them from the position, whether it was intentional or not. Even if you recognize that you can’t use this information for employment decisions, you can’t un-see it, thus putting your organization at risk.

How a Background Check Company Helps

While there are legal limitations on social media background checks, social media is a valuable resource. There are legal means to acquire the useful information it provides if it is already public. Using a third-party screening company can provide any adverse information without violating your candidate or vendor’s privacy and can offer a more comprehensive background check than doing the research internally. Professional background screening companies can conduct a social media background check on your candidate and stay compliant by omitting personal details and other discriminatory factors before they ever reach your team. Using a background screening company can help ensure you do not access or use protected class information.

Another important note to keep in mind: if you want to legally conduct a social media background check, make sure you disclose it in an authorization release that permits the company to perform the social media evaluation. You should consult your legal counsel for assistance in creating this form. These steps take away liability from the employer as it gives notice of the search and only provides information relevant to the hiring process.

 

So, “Are social media background checks legal?”

Yes—but only if they’re conducted compliantly. While it is risky and potentially unlawful to conduct these searches on your own, you can still reap the benefits of social media background checks when you use a third-party screening company
like InfoMart.

Get the rundown on social media searches here.

About Tammy Cohen

Tammy Cohen, an industry pioneer and expert in identity and employment screening, founded InfoMart 30 years ago. Deemed the “Queen of Screen,” she’s been a force behind industry-leading innovations. She was most recently the first-to-market with a fully compliant sanctions search, as well as a suite of identity services that modernizes talent onboarding. Tammy revolutionized the screening industry when she stepped into the field, developing the first client-facing application and a due diligence criminal search that has since become standard for all background screening companies. Cohen has received national awards and honors for her business and civic involvement, including Atlanta Business Chronicle’s Top 25 Women-Owned Firms in Atlanta, Enterprising Women Magazine’s Enterprising Women of the Year award, the YWCA of Northwest Georgia’s Kathryn Woods Racial Justice Award, and a commendation in the 152nd Congressional Record. To learn more about Tammy, visit www.tammycohen.com.

About InfoMart

InfoMart has been revolutionizing the global background and identity screening industry for 30 years, providing businesses the information they need to make informed hiring decisions. They develop innovative technology that modernizes talent onboarding, including a first-to-market biometric identity authentication application and a verified sanctions search. The WBENC-certified company is a founding member of the Professional Background Screening Association, and they have achieved PBSA accreditation in recognition of their consistent business practices and commitment to compliance with the FCRA. The company is dedicated to customer service, speed, and accuracy, and it has been recognized for its success, workplace culture, and corporate citizenship with over 45 industry awards. To Get the Whole Story on InfoMart, please visit www.InfoMart-USA.com, follow @InfoMartUSA, or call (770) 984-2727.

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