In today's digital age, where information is readily available at our fingertips, conducting background checks on potential hires has become more important than ever. Employers are increasingly turning to social media to gain insights into the character and behavior of their candidates. However, navigating this territory requires a clear understanding of the mechanics of social media screening and the legal considerations involved. At our 2023 Day with DISA conference, we presented social media background searches and when/how they should be used.
Mechanics of Social Media Screening
The process of social media screening involves several key steps:
Step One – The Search
The social media screening process begins with the utilization of proprietary automated software, which plays an important role in conducting a comprehensive search. This software enables your third-party administrator to delve deep into the digital footprint of candidates through different social media platforms. This software is only able to search for publicly available information. If an account is private, the software isn’t going to look for it. During this phase, we explore publicly available social media accounts owned by the candidates. Once accounts are found, it’s time to proceed to the next step.
Step Two – Establishing an Identity Match
Once accounts are found, a skilled Social Media Analyst is brought in to evaluate whether a match exists. The purpose is to make sure you have a solid match. The last thing you’d want to do as a company is attribute negative social media accounts to a candidate or employee. Typically, the process relies on the use of three identifiers for precise identification, which is email address, first and last name, and date of birth. The Analysts also go beyond these identifiers, considering contextual information such as age and location to refine the matching process. This attention to detail is crucial in excluding false matches and enhancing the accuracy of the reports.
Step Three – Reviewing the Content
Once the match happens, the third phase of the social media screening process involves a meticulous review of publicly available information posted by the candidate. The Social Media Analysts review each piece of content to assess its relevance and implications in reference to the content. To streamline this process, content is categorized into four distinct areas:
- Potentially Unlawful Activity - This includes references to drugs, theft, fraud, solicitation, and other potentially unlawful conduct, providing employers with insights into a candidate's ethical standards.
- Potentially Violent Behavior - Employers can identify aggressive online behavior, displays of force or violence, expressions of violent intent, and approvals of unlawful violence, helping assess potential risks.
- Demonstrations of Intolerance - Evaluating posts related to protected classes, such as race or gender, aids in identifying candidates who may not align with a company's values or EEO laws.
- Sexually Explicit Material - Monitoring sexually explicit language, descriptions of sexual acts, and the posting or liking of explicit content helps maintain a professional and safe work environment.
It's important to remember that the focus remains on recent activity. Any content that is older than 7 years is typically considered obsolete and not factored into assessments. The purpose of this is to make sure that employers are provided with a current and comprehensive evaluation of a candidate's digital presence.
Step Four – Reporting Content
In the final phase of the social media screening, a comprehensive report is compiled with findings of the process. This report serves as a valuable resource for employers in making informed hiring decisions. It includes detailed information about the basis for the identity match, providing a clear understanding of the rationale behind the items that were found. Relevant personal information is presented, encompassing the candidate's name, email address, physical address, residence, and employer, where available. Screenshots of any questionable content that has been flagged during our review are also provided. Lastly, the report clearly identifies the category under which the content was flagged, facilitating an efficient evaluation process for employers. This detailed approach ensures that our social media screening process is thorough, accurate, and tailored to meet the unique needs of employers seeking comprehensive candidate assessments.
Quasi-Private Social Media Platforms
Understanding the details of social media screening goes beyond public accounts. Quasi-private platforms pose a different set of challenges due to having to register to become part of the community and only members being able to participate, such as Reddit. While communications within these platforms are initially not discoverable, they can become accessible if shared publicly or posted on other platforms through methods such as screenshots, content being posted across multiple platforms, and reposts to other sites. It's essential to be vigilant in monitoring these channels to maintain a comprehensive screening process because once the communications become public, they’re accessible to the search engines, and the ability to find and report the information becomes available.
Navigating Legal Considerations for Social Media Background Searches
Social media screenings are important because the employer is held responsible for negligible hiring. It will be argued that employers should take publicly available information into consideration in determining whether it is reasonably foreseeable that an employee with engage in negative activity based on online activity. Social media screening isn't just about gathering information; it also involves adhering to various legal considerations:
- Protected Characteristics – EEO: Employers cannot use information obtained from background checks in violation of equal employment opportunity laws, including Title VII, ADA, ADEA, and GINA. By doing so, employers ensure compliance with these crucial legal frameworks and promote fair hiring practices.
- Protected Password Laws: Several states have laws protecting employees from disclosing social media passwords to employers. Staying informed about these laws is vital to avoid legal complications.
- Protected Activity – Labor Rights: The National Labor Relations Act can protect off-duty speech on social media platforms about work matters, even if it includes strong language or criticisms. This is important to ensure employers don't infringe on employees' labor rights inadvertently.
- FCRA: Employers must be aware that the FCRA applies to this entire process, and they should treat it the same way as any other background check process. Employers must provide written consent before a social media screen is conducted and provide the candidate with a pre-adverse action notice along with a copy of the social media screen before taking adverse action.
Catch 22
Navigating the delicate balance between safeguarding against potential legal issues and ensuring responsible hiring decisions presents what could be described as a "Catch-22" scenario for employers. On one hand, employers don’t want to know information, so they won’t be accused of making a decision in violation of these laws designed to protect workers. However, on the other hand, employers need to know information to determine if the applicant is qualified for the job and not a potential risk of harm to others or the company’s reputation. It's a very thin line to walk, but it represents the importance of a well-structured screening process in today's employment landscape.
Next Steps
Understanding the nuances of social media background searches is essential in today's hiring landscape. While it presents legal challenges, it's a valuable tool to protect your organization's reputation and ensure the safety of your workforce.
Employers are recommended to leverage a third party for screening purposes and to assist them in making an informed decision. DISA Global Solutions can help with thorough social media background searches of your candidate to ensure that you have a safe hire. For more information contact DISA athttps://disa.com/contact/industry.
Day with DISA 2024
We're just 4 months away from our next annual Day with DISA event, scheduled for January 22-25, 2024. You won't want to miss what we have in store for you next year. Keep an eye out for https://disa.com/news/save-the-dates-day-with-disa-2024 to be released this October!
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About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background screening, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.
DISA Global Solutions aims to provide accurate and informative content for educational purposes only and does not constitute legal advice. The reader retains full responsibility for the use of the information contained herein. Always consult with a professional or legal expert.
