Social Media Background Checks and Job Applicant Rights

Whether you are an employee looking for a new job or an employer screening your applicants, it is important to understand the law related to social media and background checking. With the rise of Facebook, Twitter, LinkedIn and other online social networking sites, employers have more access than ever to their applicant’s personal lives and contacts. But can an employer ever go too far? What rights do employees and applicants have related to social media and background checking?

Whether you are an employee looking for a new job or an employer screening your applicants, it is important to understand the law related to social media and background checking. With the rise of Facebook, Twitter, LinkedIn and other online social networking sites, employers have more access than ever to their applicant’s personal lives and contacts. But can an employer ever go too far? What rights do employees and applicants have related to social media and background checking?

What is background checking?
An employer may want to gather specific information related to an applicant’s professional background, criminal record, credit history, and may also see the benefit of scanning social media accounts. This information can be accessed through credit reports, employment history, public records, and now, social media accounts.

What is a social media background check?
When you post comments on the internet or summarize your interests for a dating website, you may not expect that information to go to a potential employer. Be wary, because new employment background checks will often include a scan of social media websites. Whether your employer is reviewing your accounts directly or hiring a third party, information disclosed on your social media accounts could affect a hiring decision.

Third parties and social media accounts
The Federal Trade Commission (FTC) has reviewed a case involving a company that sold background reports to employers including social media. The Commission then issued a letter to the company clarifying that they must follow the same rules under the Fair Credit Reporting Act (FCRA) when including any information derived from social media. This means that if a third party reviews your social media accounts to generate information for a potential employer, they must take steps to ensure that the reports are accurate and that they relate to the correct person. These companies must also certify that the report will not be used in any way that would violate state or federal employment laws and regulations.

What are employers looking for?
You may be worried about potential employers looking through your college spring break photos, but in fact, third parties are primarily scanning your accounts for very specific information. Third parties are looking for evidence of aggression or violent acts, any unlawful activity, and any discriminatory activity, like posting racist commentary as a status update. In most cases, your photos will not be passed along to an employer.

Notification and disclosure under the FCRA
The Fair Credit Reporting Act (FCRA) requires companies to notify applicants of their plans to access credit reports for the purposes of employment. There are very specific disclosure requirements to ensure that an employer is in compliance with the FCRA when making hiring decisions. Third parties that collect and generate these reports must also comply with the FCRA.

Do I have a right to know if a third party prepares a report for a potential employer?
Yes. Under the FCRA rules, third parties must provide copies of their reports to the individuals under review and must have a process in place to dispute anything that is written about them in a report. A potential employer who plans to take any adverse action on the basis of the report must provide advance notice to employees or applicants.

Off-limits information in the hiring process
Your social media accounts are likely to disclose a lot of information about you that cannot be used in the hiring process. It is illegal for any employer to consider your race, sexual orientation, national origin, or religious affiliation when making a hiring decision. If you have reason to believe that you suffered discrimination related to background checks and hiring, you may be eligible to pursue legal remedies.

What can I do to protect my rights?
If you believe that a potential employer or a third-party company violated your rights related to background checks or social media, our firm can review the facts of your case. Wanta Thome Jozwiak & Wanta LLP is currently investigating cases related to background checking, FCRA compliance, and social media accounts. For more information about your rights, please call 612-252-3570. Our Minneapolis, Minnesota attorneys are prepared to investigate your claim, assess personal and financial damages, and aggressively pursue the full remedies you are entitled to.