The U.S. Department of Homeland Security (DHS) recently announced that, as of October 18, 2017, it will expand the background checks it conducts on immigrants to cover social media and internet search results. This policy includes green card holders and naturalized citizens, with the information collected becoming part of their immigration file. The impact to employers is that this policy may decrease the number of qualified candidates to fill open positions.
According to the Federal Register, the new administration rule will include the collection of “social media handles, aliases, associated identifiable information, and search results.”
Coincidentally, social media screening for employment purposes is at an all-time high. Information from social media sources can assist employers in making valuable decisions by providing a better picture of a candidate as a potential employee. However, while these new and evolving sources of information have positive elements, they have also created potential legal exposure for employers.
It is important to note that, unlike the new government policy, employers should not require applicants or employees to provide them with their username and password to access their social media accounts. According to the National Conference of State Legislatures, 25 states have enacted laws that apply to employers, and in 2016, the Uniform Law Commission adopted the Employee and Student Online Privacy and Protection Act.
The legal risk in conducting social media searches for employment purposes can be minimized by outsourcing social media research and reporting to a professional background screening firm. This creates a wall between the applicant and employer, and the screening firm can:
- Help the employer integrate social media information into their applicant and employee screening program so that it’s consistent with their people risk strategy.
- Redact protected class information that is irrelevant and potentially creates legal exposure for the employer.
- Report only information the employer deems relevant.
Employers that conduct social media searches as part of their hiring process should:
- Consult legal counsel regarding the use of each social media site.
- Always comply with FCRA and EEOC regulations.
- Make hiring decisions using only information relevant to the offer of employment.
The rules for social media background screening for employment purposes are evolving and future legislation and case law will help guide the conduct and use of this research. Using social media searches should be just one part of your overall background screening process, along with criminal screenings, verification checks, etc.
In our continuing effort to keep our clients out of harm’s way, Cisive has created an informative White Paper on social media searches best practices, Compliance Considerations in Social Media Employment Background Screening. Click here to download.