HR Tip: Background checks and Social Media

With the surge of social networking websites, it is easier than ever before to obtain surveillance on claimants in Workers' Compensation cases. In fact, increasingly, courts have permitted the use of information and photographs found on social networking sites to be used as evidence in Workers' Compensation lawsuits.

While the use of social networking sites for discovery purposes is growing and useful for Workers' Compensation investigations, the use of social networking websites as part of the hiring/background screening process remains limited. EmployeeScreenIQ's fourth annual survey of U.S.-based employers regarding their use of employment background checks noted that "the inherent legal and privacy risks in uncovering "protected class" information (age, race, religious affiliation, etc.) or in making decisions based on unverifiable information make social sites less and less useful in the estimation of many employers."

Issues involving social media background checks include:

• Privacy
• New state laws prohibiting password requests
• More information than you want (discovering protected class status can lead to Title VII and other discrimination claims)
• Medical information
• Pregnancy
• NLRA/Concerted Activity claims
• Fair Credit Reporting Act and state equivalent violations
• Negligent hiring
• State laws relating to off-duty conduct

If employers do choose to do background checks on social media websites, it's important to take steps to reduce exposure. Such steps include developing a social media policy, being transparent with candidates, having someone who does not make hiring decisions do the check (carefully prepare a checklist of information to obtain so it is consistent for all applicants) and filter the information that could lead to trouble, limit the check to the finalists, and follow proper Fair Credit Reporting Act procedures.

In all cases, train hire managers to understand the pitfalls of social media usage.