Are Social Media Background Screenings Legal? 4 Frequently Asked Questions
February 1, 2021
2020 has witnessed an increase in how world events and public safety are witnessed through social media. An increase in concern for employer safety has led to some human resource departments to consider performing social media background screenings as part of their pre-employment background check process. Though social media is not new and the laws surrounding social media background screenings have not recently changed, there is still uncertainty among human resources professionals on some of the do’s and don’ts on this type of screening. Here are 4 frequently asked questions about social media screenings:
Are Social Media Background Screenings Legal?
Yes, however the information found in the report cannot discriminate against candidates of protected classes. A protected class is a group of people with a common characteristic that are legally protected from employment discrimination on the basis of that characteristic. Protected class legislation exists at both the federal and state law. Protected class information typically includes:
Sex
Race
Color
Age
Religion
Citizenship
National origin
Marital status
Physical or mental disability
Veteran status
Genetic information
Additionally, candidates must legally consent to allow the social media background check to be performed by or on behalf of the employer.
Can I Use What I Find in a Social Media Background Check to Make a Hiring Decision?
Yes, but not information that is considered subjective. Just because there may be an image of a cup does not mean that the individual is performing an illegal activity. The content that is received must also follow under the following categories to be considered as a reason to not hire an individual:
Potentially illegal
Potentially violent
Sexually explicit
Racist or intolerant
Please note, that the results of a social media background check can not legally be the sole reason to not hire an individual.
Can I Perform Social Media Background Checks on Current Employees?
Yes you can. Similar to pre-employment social media background checks, current employees must consent to a social media screening by an employer.
What Are The Risks of Performing a Social Media Background Search?
The results of a social media background check cannot legally be the sole reason to not hire an individual. This search is not the only background screening search that cannot be solely used to make a hiring decision, other popular background check searches include Credit Check Reports and Workers Compensation Reports. Making a decision solely on the results of these types of searches can lead to discrimination lawsuits against the employer.
Though social media continues to become part of daily life, there are still laws and risks related to performing searches for employment purposes.