Social Media Background Checks: A Slippery Slope

For a more nuanced view, we turned to James Crumlin, a Partner in the Nashville law firm of Bone, McAllester, Norton. James specializes in the area of employment law.

Borrowman: It almost seems like a no-brainer for an employer to do a social media background check on its candidates. What could be wrong with that?

Crumlin: Well, there’s nothing wrong if that process follows the same rules as any other background check. It’s in the nature of a social media background check, though, that it can invite employers to look at information that may not be relevant to job performance. For example, your candidate may have posted vacation pictures that may not be very tasteful. But, are those pictures really relevant to whether the person can do the job he’s being considered for? Or, is it simply unflattering information?

Borrowman: Is the process of drawing that line any different than drawing the line when it comes to non-work related information gathered in a standard background check?

Crumlin. Not really. You just need to make sure you’re not using the social media background check to do something you couldn’t do otherwise. In a social media background check, for example, you might find reference to a person’s religion, race, marital status, disability or other information that is protected under Federal employment laws. When you’re interviewing a candidate, you’re not supposed to inquire about any of that information.

As with any other background check, the candidate must consent to the social media background check and be notified of any adverse information that is found.  There are companies that do this kind of background check. The FTC has determined that they are compliant with the Fair Credit Reporting Act, which governs other forms of background checking.

Borrowman: Fundamentally then, things that you can’t ask in an interview, you can’t do research on in a social media background check.

Crumlin: Right.

Borrowman: So, why would you go looking at social media sites? Is there likely to be anything there that is truly relevant?

Crumlin: It depends. You might not want a candidate who has a history of talking about former employers and bosses in a defamatory way on a social media site. People do weird things with social media. They think they can say anything. If the candidate is bragging about having a few drinks at lunch and then going back to work, that would be information that might be relevant to the hiring decision.

Borrowman: And that’s where a social media background check becomes a slippery slope?

Crumlin: That’s right. It complicates things because you have to wonder whether or not the information that you find is relevant to job performance. If the information is not relevant to job performance and if you use that information, do you violate Federal laws?

I would always recommend that the employer stick to the essentials of the job; that they stick to the job requirements. If the employer learns something that appears contrary to information provided during an interview, there can still be a question about whether the information is job-related.

Borrowman: Can you give an example?

Crumlin: You could be in a situation where the job requires the candidate to do a lot of travel. The candidate says travel is fine. In the interview, you can’t ask questions about family. In the social media background check, though, you discover photos of a wife and young kids. If the decision not to hire is based on that information, the employer could be in trouble.

Borrowman: How would an employer handle that new information? You shouldn’t ignore it. But, you can’t ask about it.

Crumlin: No, you can’t use the social media background check to learn information that you can’t learn in interviewing or other background checks. You have to look to his qualifications, to see whether he traveled in a previous position. You could ask references whether the candidate ever had problems with the travel requirements of the job. That’s about as close as you can get.

Borrowman: Do you have any “bottom-line” recommendations about doing a social media background check?

Crumlin: One thing employers should not do is take a casual approach to using social media background check as a quasi-background check. They should not (and should not allow their employees to) think “I’ll just go on Facebook and see what I can find out.”

If you’re going to use this process, you need to have it as a formal part of the hiring process. You need to treat it just like you would any other background check that the company does. You should notify the candidate that you are doing the background check, have them consent to it, and also inform them of any adverse information you find. If it leads to a decision not to hire, you have to explain that, too. All the while, you have to make sure you’re in compliance with Federal employment laws in conducting these background checks.

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