Social networks have revolutionized the way we communicate with each other; networking systems have replaced face to face communications and the way we relate to the world at large. This trend is having an impact on all spheres of life including employment screening.  More and more employers are relying on social network sites to gather information on their applicants and employees. Social networking sites such as Facebook, MySpace, LinkedIn, and Twitter contain a host of personal information which is now being tapped by hiring managers and employers.

However the use of social networking for background screening may not always be a good idea. The question to be asked is does use of social networking to find out background information in compliance with existing FCRA (Fair Credit Reporting Act) and EEOC regulation that exist in the country. Employers must realize that these guidelines are also applicable while using this means of screening. Issues of data privacy, authenticity and discrimination are just some that employers can face in using social networks for background checks and with this can come a host of legal issues. In accessing an applicant’s social network, the hiring manager receives a lot of personal information hiring decision should not be influenced especially by factors such as an applicant’s race, sexual orientation, marital status, class, gender which can lead to legal implications.

The laws that may have an impact of workplace use of social media include the following:

  • The Stored Communications Act (SCA).
  • The Fair Credit Reporting Act (FCRA).
  • The Genetic Information Nondiscrimination Act (GINA).
  •  Common law privacy principles

The SCA excepts from coverage any electronic communications that are “readily accessible to the general public and can legally implicate if anyone uses information that has been classified private and used in employment-based decisions. In Gaskell vs. university of Kentucky, an adverse hiring decision was based on the Professor’s religious which were put on his website. The ruling was made in favor of the professor. The lawsuit not only brought in financial repercussions but made for poor publicity for the University as well.

The law states that if you use a third party to do background checks that include viewing employees’ social media posts, the FCRA requires that you first obtain the applicant’s consent. GINA can be implicated if one shares one’s health issues in a social media site.

At common law, “privacy” is the legal right to be left alone. There are various forms of this right, but the one most implicated by use of social media is the “intrusion upon seclusion.” One who intentionally intrudes physically or otherwise upon the solitude or seclusion of another or his private affairs or concerns is subject to liability to the other for invasion of privacy if the intrusion would be highly offensive to a reasonable person.

Keeping in mind the numerous regulations and laws that currently govern social media policy, we have tried to list out certain things to be kept in mind while you chalk out your social media policy.

  • Define what social media is for your organization. Also, make transparent guidelines on what can be discussed about one’s company.
  • Discourage any mixing of job-related and personal postings.
  • Tune your social media policies with the existing laws and regulations in the country.
  • Clearly define what is acceptable in the Company with regard to social media and what can be put in the sites about the Company.
  • Provide ample training to recruiters, interviewers to be compliant with non-discriminatory mode of recruitment.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Any issues regarding compliance and obligations under United States or International laws or regulations should be addressed through your legal department or outside counsel.