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Is this Legal? Social Media Background Check FAQs
Mariah Barr
13 mins read

Let's face it: Social media is a big part of most people's lives. Currently, there are 4.08 billion social media users across the world.

As the Society for Human Resource Management states, "For HR to overlook it today would be like ignoring email 20 years ago." And yet many companies still have questions and concerns regarding social media screenings.

  • Is it legal?
  • Is it really necessary?
  • Can't I just do it myself?

Below, we're addressing these questions as well as other FAQs regarding social media checks.

Is social media screening legal?

The short answer: Yes, BUT it has to be done correctly.

If you're tasked with making hiring decisions and you decide to look at an applicant's social media activity on your own, you're opening yourself up to potential problems (such as discrimination lawsuits).


Well, the main issue with a "do it yourself" approach is that you will likely stumble upon protected class information. As Westlaw states, a protected class is "a group of people with a common characteristic who are legally protected from employment discrimination on the basis of that characteristic. Protected classes are created by both federal and state law."

Protected class information typically includes the following:

  • Race
  • Color
  • Religion or creed
  • National origin or ancestry
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Veteran status
  • Genetic information
  • Citizenship
  • Marital status

If you're a hiring manager and you come across this information during a social media search, you can't "unsee" what you've come across, so this could put you in legal hot water.

This is why using a third-party screening company that filters out protected class information from screening reports makes sense to conduct background checks, criminal record checks, and social media checks. Because a compliant social media screen is legal.

By compliant, we mean a social screening that...

  • Provides all relevant authorizations/disclosures and gets explicit permission from the candidate/employee to conduct the social media screening.
  • Focuses only on business-related information and redacts protected class information when presenting results. In addition to avoiding protected class information, the social media screening needs to focus on business-related "actionable" information. For example, how many glasses of wine a job applicant had the other night isn't business-related info. The bigoted way the applicant talks about customers at a former job is.
  • Does not use any sort of hacking, scraping, or otherwise illegal or unethical ways to gain access to social media accounts. It is illegal in many states for an employer to ask a candidate or employee to disclose their social media account login credentials for screening or monitoring purposes.
  • Makes a good-faith effort, as dictated by law, to ensure the correct person is being reviewed (in other words, making sure you're seeing information on the right John Smith, for example).

Bottom line: a compliant social media screening is legal, and you should consider it an extension of the traditional background screening process. (More on this point below.)

What does a compliant social media screen look for/cover?

A compliant social media screening service will consider four categories of content:

  • Racist or intolerant
  • Sexually explicit
  • Potentially illegal
  • Potentially violent

When presenting results, Foley always redacts protected class information.

If the social screening uncovers an off-color post someone made five years ago, are they automatically disqualified?

Not necessarily. If the social media screening uncovers content from one (or more) of the categories listed above, this provides the employer with deeper insights that can help inform their hiring decision.

Social media screening isn't unlike a criminal background check. If an applicant had a DUI several years ago, that doesn't necessarily mean the candidate won't get the job as a marketing coordinator. The same is true with a social media screening. The findings could provide additional discussion points during the hiring process; the findings don't automatically disqualify the person from consideration.

Why can't I, as the hiring manager, conduct the social media check myself?

Just because you can doesn't mean you should. As we stated in our response to the first question above, federal law is clear that you can't use protected class information to inform your hiring decisions.

So what happens if you look at a candidate's Twitter feed and you see information about their religion or sexual orientation? You might say to yourself, "Well, I won't allow this to influence my decision." But you simply can't prove it hasn't.

twitter-cardThis tweet is a good example of information that isn't business-related and that you can't "unsee" if you stumble across it. The last thing your organization needs is to be accused of not hiring mothers and mothers-to-be.

And the truth is it's impossible for one person—or even a team of people—to conduct a thorough and compliant review of a person's online footprint. Sure, when we think of "social media," we think of the big players, like Facebook, Twitter, Instagram, and LinkedIn. But what about Reddit? Pinterest? Comment sections on blogs? Personal blogs? Up-and-coming social media platforms and apps? The Internet is a vast place with millions of places to look.

If one person can't conduct a thorough and compliant review, how does Foley do it?

Our social media screening solution combines the best of AI (artificial intelligence) with human oversight.

The AI does the heavy lifting by scouring everything that's out there. But then we always have quality assurance in the form of a person who monitors the process (for example, making sure the focus is on the correct person—the "right" John Smith) and reviews the results before presenting them to our customers. The QA person reviews the results to make sure everything the customer has asked us to specifically look for is included and falls within the legal definitions—and that the results are presented legally and ethically.

In addition to being compliant, legal, and ethical, our process is also amazingly quick, thanks to our unrivaled AI. The question that hiring managers should be asking is, "Why wouldn't I outsource this process to a company like Foley, just like I do background checks, criminal checks, and drug testing?"

What happens if a job applicant's accounts are private?

A compliant social media screening does not hack accounts or make contact with the person under review (again, the keyword is "compliant"—we can only speak about compliant social screenings like Foley's).

If we encounter a private or locked account, we move on. But remember, the online world is a vast space, and it's rare for someone to be completely "off the grid." In our experience, we've discovered that most people have at least some publicly accessible information online that we can locate and vet.

Why should I consider ongoing screenings of my employees' social media activity? Isn't that a little 'Big Brother'? Don't people deserve their privacy?

People deserve their privacy. Don't forget: At Foley, we're people, too, and we value our own privacy.

We all have control over our social media privacy settings. We're responsible for what we put out in the ether. And as we mentioned above, we've found that the majority of people's social media accounts are at least somewhat publicly accessible.

Now let's address the other part of the question—the "Big Brother" concern. The goal with ongoing social media monitoring isn't to "watch" employees and judge them on things, like what they're viewing on Netflix, how many glasses of wine they had on Friday night, or who they're supporting in an upcoming election.

The goal is to monitor content in those four critical areas we noted earlier. Content that's...

  • Racist or intolerant
  • Sexually explicit
  • Potentially illegal
  • Potentially violent

Why do we monitor this content? Because it reflects behaviors that could adversely affect the workplace, either directly, indirectly, or both.

For example, if someone is regularly posting racist or bigoted memes on Facebook, how will this make coworkers feel? And how will this intolerant language reflect upon your company?

Sure, the person might put a disclaimer on their social media profile that says, "Opinions are my own." But we all know how difficult it can be to separate the bigot from the brand.

People aren't robots. They are dynamic. They change. They evolve. Life happens. They have successes. They have failures. And they can make mistakes. Just because the pre-employment social check didn't turn up anything problematic, that doesn't mean a year down the road an employee won't begin posting troubling content. (The same is true with ongoing criminal screening, which is why we recommend doing that as well.)

A screening that alerts you of problematic content and behaviors sooner rather than later can allow you and your team to address the situation appropriately before it disrupts employee morale, puts people in danger, negatively affects your brand, causes a PR nightmare, or all of the above.

What about the potential for "false positives"?

Foley’s compliant social media screening has protocols in place to ensure that the correct person is being reviewed, just as we do for traditional background screenings and criminal background checks.

Reminder: If you plan to reject a job applicant due to information obtained on a social media screening check, you are required to inform the job applicant via a pre-adverse action notice (just as you would for a criminal background check). So if something comes up that the job applicant disputes, this can be sorted out through the adverse action process.

How can I tell if a social media screening vendor conducts compliant screenings?

A smart start is making sure they have content like this on their website.

You want a social media screening provider that demonstrates a deep understanding of federal and state laws as they pertain to hiring and employment. They should understand the Fair Credit Reporting Act (FCRA) and the Equal Employment Opportunity Commission (EEOC). They should be willing to share their process because transparency is critical. Quality companies have no problem answering your questions, explaining exactly how the technology works, and outlining the report's overall scope (e.g., how many years back will the review go?).

Also consider working with a "one-stop shop," meaning a company that can handle all your screens in-house: background, criminal, drug testing, MVR, social, and so on. Why? Because they've made it their business to be experts in all aspects of background checks. 

Foley is ready to be your single source of background checks for employment. Are you ready to start running 100% compliant and ethical background screens? Let's get started.

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