Does Your Recruitment Process Need to Include a Social Media Background Check?

Social media is become an essential component of both personal and professional life in today’s linked society. Given the accessibility of public accounts, individuals must exercise caution in their online expression. While it may be tempting for businesses and organizations to base hiring choices only on an applicant’s opinions on social media, there are numerous aspects to take into account.

It is within an employer’s rights to conduct social media background checks, and many have reported using this practice regularly during the hiring process. Studies indicate that 43% of companies in the United States engage in such screenings, with 61% performing online checks to gain deeper insights into candidates.

Among the most frequently utilized platforms for social media background checks are Facebook and LinkedIn. These platforms provide valuable tools for employers to gain additional information about candidates that may not be readily apparent during an interview. This allows recruiters to make more informed decisions and find the most suitable match for each open position.

The prevalence of social media screenings has even prompted the creation of platforms like LinkedIn, which enables users to present a professional image to potential employers. Additionally, job boards such as Indeed and Monster facilitate the development of professional profiles, making it easier for employers to locate candidates online. However, it is worth noting that some individuals choose to temporarily close or delete their Facebook accounts, reactivating them only after securing employment.

The Legality of Denying Employment Based on Social Media Findings

The pivotal question that arises is whether employers can refuse to hire candidates based on information discovered on their social media profiles. The quick answer is yes, but there are a number of legal pitfalls to be aware of. Utilizing social media background checks as the foundation for a recruitment campaign may result in companies conflicting with privacy protection and employment laws.

These regulations vary in their scope and application. Federal and state rules, for example, place restrictions on how much information firms may use when recruiting new employees, and the specifics vary from state to state and situation to situation.

The Employment-at-Will Doctrine

The employment-at-will doctrine refers to an agreement that establishes the job as indefinite and subject to termination by either the employer or the employee. Typically, this provision is explicitly outlined in the hiring contract.

This doctrine affords employers flexibility when terminating employees who engage in offensive behavior or make inappropriate comments on social media, even if such actions are unrelated to their job responsibilities. For example, in the case of Ellis v. The U.S. Court of Appeals for the Third Circuit determined that when Bank of New York Mellon fired Lisa Ellis, the organisation did not transgress Title VII of the Civil Rights Act of 1964.

Lisa Ellis held a senior control analyst position at BNY Mellon and was fired after making racially charged comments on her publicly accessible personal Facebook account, pertaining to a local news story about a councilman driving his car through a Black protest movement. The bank’s Facebook page subsequently received numerous complaints about Ellis’s online behavior, with commenters making derogatory remarks about the company’s values.

The bank, upon determining that Ellis had violated its code of conduct, terminated her employment. The court ruling stated that the termination based on her social media conduct was not unlawful and did not contravene BNY Mellon’s written policy regarding online presence.

Laws Protecting Against Discrimination

To stop discrimination against prospective workers based on their ethnicity, gender, or religious convictions, several regulations have been put in effect. Hiring professionals who employ social media as part of their recruitment strategy should be cautious to avoid violating these laws.

When reviewing a candidate’s social media presence, the decision to hire or reject them should not be solely based on personal information discovered online. Candidates can take legal action against the company, citing discriminatory practices.

A case that illustrates this point is Gaskell v. University of Kentucky, which ruled in favor of the plaintiff. It was established that the candidate, Gaskell, was overlooked for a position at the University of Kentucky due to his religious beliefs, which the university discovered through his social media profile.

The National Labor Relations Act

The National Labor Relations Act guarantees workers’ freedom of association, allowing them to call for better working conditions and representation without worrying about facing punishment.

The National Labor Relations Act, for example, forbids employers from refusing employment based solely on a candidate’s association with a union, as revealed on their personal social media page, if they discover during the hiring process that the applicant has actively discussed topics like unions and wages on social media.

Practicing Caution in Social Media Checks

While social media background checks can serve as a valuable tool in screening candidates, recruiters must exercise caution. Over-reliance on social media information can potentially lead to legal complications that may prove costly for the company.