Using social media in background checks can be risky for employers

Excerpted from The Oklahoman By Paula Burkes

Can you tell us more about the increasing popularity to include social media in background checks?

Full disclosure: Social media was in its infancy when I was interviewing for my first job. MySpace was huge, and Facebook was only at a handful of universities. Then, social-media users and employers alike were learning — often too late — that digital information never goes away. So, it’s no wonder employers are turning to social media as part of an informal background check. Excluding certain medical and genetic information, employers have wide latitude to inquire into an applicant’s background to include work history, education, criminal record, financial history and social media use. Unlike a resume or cover letter that is carefully edited and tailored, when an applicant or employee posts a social media comment, an employer may see unfiltered information regarding that applicant or employee. Indeed, the best person to tell an employer if an applicant is a good organizational fit is the applicant—who usually hasn’t even considered working for that organization when he or she posts to social media. In some ways, social media is an applicant or employee’s truth serum about information.

If an employer chooses to examine an applicant’s social media, what legal issues could potentially arise?

There are several concerns when examining an applicant’s social media. For starters, you can’t un-see an applicant’s social media information. This could lead to problems with inherent bias and could be used against an employer during litigation. There have already been numerous lawsuits alleging bias when an employer used social-media profiles to screen potential applicants. For example, an applicant could claim that an employment offer was not extended based on race, pregnancy, religion, medical issues or another protected characteristic the employer noticed when examining an applicant’s social media. In addition to anti-discrimination concerns, several states have passed privacy laws prohibiting employers from requiring an applicant to provide social media passwords or account access.

What steps can employers take to ensure they cover their bases when it comes to including social media as part of a background check?

Employers should cautiously use social media as part of a background check. The best approach is to standardize what an employer is looking for when screening an applicant’s social media. For example, an employer can lawfully reject an applicant based on the applicant’s discriminatory comments posted to social media. But if the decision not to hire the applicant is challenged because the applicant believes he or she was rejected based on a protected status, then the onus is on the employer to articulate a legitimate, nondiscriminatory reason for not extending a job offer. If rejection was based on social media information, the employer should clearly explain which information led to the determination not to extend the job offer. And if a conditional offer of employment is withdrawn based on social media information, an employer should send the applicant written communication that the conditional offer is withdrawn and internally document why that applicant was rejected.