Statutes, Screening, and Snapchat. A Look into How Social Media is Changing the Background Check Industry

The proliferation of social media into our daily lives comes as no surprise, and yet people who love to share what they’ve eaten for breakfast with the world are apprehensive about sharing what they post on social media with their prospective employers.
By Ariella Serman
March 19, 2021

According to a Global Web Index study, between April and September of 2018, eighty-three percent of all internet users were engaging in social media platforms. Of that eighty-three percent, the average Internet user in North America spent two hours and six minutes on social media per day. Furthermore, the number of social media users globally is 3.2 billion people, or approximately forty-two percent of the total population. The proliferation of social media into our daily lives comes as no surprise, and yet people who love to share what they’ve eaten for breakfast with the world are apprehensive about sharing what they post on social media with their prospective employers.

Socialization of Background Checks

How people use social media in terms of what they post, who they engage with, and how they conduct themselves in the virtual world is a sneak peek, so to speak, of their personal and professional potential. It makes sense that prospective employers would want access to this type of information in order to infer a candidate’s character and thus compatibility with the job position. But as obvious as it may seem to use social media as a screening mechanism, it’s important to take a closer look at the pertinancy of background checks in the social realm.

The Rules of the Game

Even though social media has only been around for the past 2 decades, using an individual’s personal information and circumstances for hiring determinants has been legally scrutinized for many years. Section VII of the 1964 American Civil Rights Act prohibits employer discrimination of employee candidates. It states that it is illegal for employers, “ to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Social media users often voluntarily provide information about their personally held beliefs, religious affiliation, race, gender, age, ethnicity etc. If employers were to take into account candidates’ social media pages before hiring, this could lead to a misuse of the information and a biasing effect, consciously or subconsciously, on the employers’ decision to hire. Furthermore, the information posted on most social media platforms has, as of date, no way of being verified. Thus, there is virtually no way for employers to separate accurate information from fictitious posts.

The glaring issues related to using social media for hiring decisions make it seem as though, theoretically, business and pleasure should be kept on opposite ends of the work/life spectrum. So the real question is, what are employers actually doing in practice when using social media as a tool to come to hiring decisions? The answer, as insipid as it may seem, is that employers’ positions on using social media to vet candidates varies widely.

Taking Social Media to Court

Take, for example, the 2010 case of Gaskell v. Univ. of Kentucky. Gaskell applied for a position as the founding director for UK’s MacAdam Observatory but was rejected for employment. An incumbent employee of the observatory sent an email to the members of the hiring committee denoting Gaskell’s religious observance, which he found on Gaskell’s personal website. Whether this is a case of correlation or causation, the mere fact that the committee became aware of Gaskell’s religious beliefs through a personal medium may have inferred improper hiring motives.

On the opposite end of the continuum, as of 2012, several states including California, Illinois, Michigan, and Maryland have enacted laws that prohibit employers from requesting access to job candidates and employees’ social media usernames and passwords. This is seemingly to protect from any biases that may be formed against personally held beliefs. At the federal level, the U.S. House of Representatives introduced the Social Networking Online Protection Act in 2012 which prohibits employers from denying employment opportunities to candidates based on their refusal to disclose his/her username and password to social media accounts.

What Should Employers Do?

Although there are newly enacted laws being implemented about the use and abuse of candidates’ social media platforms, there are still many gray areas that exist about this relatively new virtual world of information. So should employers still use social media as an instrument of vetting a candidate so long as it’s in a legal framework? Many have suggested that an employer’s best bet is to stay away from social media as much as possible in order to avoid an unsolicited predicament. Especially with the increasing number of lawsuits against social media platforms such as Facebook for data and privacy breaches, it is best to stay clear of the social storm.

However, some have consented to few professional social media sites such as LinkedIn and Xing which are used for employment and professional networking and which have the ability to provide verification on education and work experience. These sites should, undoubtedly, be used with caution and with candidate’s full awareness that the employer is using the site as a determinant factor in the hiring process.

To Be Continued…

The use of social media as a tool to conduct due diligence on prospective employees is both controversial and ambiguous on the legal, ethical, and practical fronts. It is important for employers to understand their rights as well as their boundaries in terms of accessing information, as well as using the information found as part of their decision-making process. While many employers may be tempted to leverage social media with the goal of gaining further insight into the character of the subject under review, adept background check providers are able to successfully accomplish the same goal without using social media sources that pose potential legal and ethical concerns. With all the uncertainty though, one thing seems to be very clear—social media is dynamically changing the background check industry. Whether for good or bad, well I guess we’ll have to see.

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