Five Steps to Challenge Social Media Screening.

The use of social media profiles by employers as a screening tool has evolved over the last few years. Certain states have implemented laws prohibiting employers from asking job applicants to provide their personal Facebook account login information. Employers now have to craft their own policy pertaining to these types of searches, not to mention the potential liability for discriminating against certain protected classes if your organization uses social media information to make a hiring decision (especially in the state of California).

1. Is social media screening protected under the Fair Credit Reporting Act (FCRA)?
   Depending on whom you pose the question to, you may receive conflicting information. Be aware that any consumer report for “employment purposes” must ensure “maximum possible accuracy” when reporting adverse information. This leads to the age old question of what is considered “adverse information” when conducting social media searches. What constitutes an “inappropriate” social media profile?
2. Can the employer validate and verify that the profile they are viewing in fact belongs to the subject of the report?
   The simple answer is no. Unlike traditional screening tools (criminal records, driving records, etc.) which are all identified by either name, date of birth, driver’s license number, and/or social security number match, social media profiles are not held by any kind of identifier other than a name and in some instances, a physical location; therefore, employers could potentially take adverse action on the assumption that the social media profile they vetted belonged to the candidate in question, even though they cannot validate this through identifiers.
3. Did the new candidate provide written consent for the employer to conduct a social media search?
   A potential “pitfall” for employers when performing social media searches is not gathering the proper disclosure consent from the subject of the report. To comply with the FCRA, employers must receive signed consent from the candidate before a background check can be performed. The majority of employers are bypassing the consent form all together and proceeding with their own “background check.” This is a violation of Federal and State law. In addition, certain notices must be provided to a candidate explaining their rights under Federal and State law. Failure to do this has major legal ramifications.
4. What is considered a pass/fail social media profile?
   A criminal record gives you a detailed accurate public record of the crime committed by the person in question, identified by both a full name and date of birth. Social media posts are as not as “black and white” as criminal records. In fact, there is a tremendous amount of gray area that exists; therefore, what is considered as a failed or disqualified social media profile? That question is too broad and could only be answered on a company by company basis. There can be no consistency or uniformity when vetting social media profiles, due to the fact that the information is not reliable or accurate.
5. Was the candidate able to dispute the information found on the social media profile?
   Another section of the FCRA states that an applicant must have the right to dispute any adverse information reported on them, in the event the information is inaccurate or not up to date; however, the majority of employers skip this step which can lead to major trouble with certain regulatory agencies. This is a right afforded to each candidate under federal law. When an applicant completes a disclosure form, they must be given the right to dispute any and all information reported on them.