The Most Frequently Asked Questions Around The Legality of Online Screening for Workplace Misconduct:

We #AskAnEmploymentLawyer to find out!

There’s no question that organizations are struggling to hire and retain talent. It’s hard to find candidates with the right skills, and even harder to find candidates with the right skills who also won’t engage in misconduct. This shows companies are struggling with quality of hire. 

While there are numerous solutions that assess quality of hire from a skills perspective, technology hasn’t kept up as much around screening for workplace misconduct. It’s no wonder that companies and hiring teams are turning to social media to gather these insights. A study by Resume Builder shows 3 in 4 hiring managers use social media to evaluate candidates and 80% decided not to hire someone based on social media findings. Alarmingly, however, the fact that 1 in 6 hiring managers ‘always’ look at candidates’ social media in search of answers to illegal interview questions is certainly a big problem.

Online and social media screening solutions add in an extra layer of protection to prevent workplace misconduct where traditional background checks leave off. For example, criminal background checks uncover information that is recorded in criminal databases. Online screening solutions can find other kinds of misconduct, criminal, and illegal activity like violence, threats, and harassment, that aren’t as likely to appear on a criminal check but significantly impact the workplace. 

Unfortunately, there are still so many misconceptions around preventing workplace misconduct and searching online for information about candidates. That’s why we connected with Pam Devata – a partner in Seyfarth and Shaw, LLP’s Labor and Employment Practice Group and one of the nation’s top voices on the Fair Credit Reporting Act (FCRA) and state laws affecting employment background screening – to answer some critical compliance questions every corporate officer, HR, and Talent Acquisition professional needs to know.  

See what Devata gets asked the most about workplace misconduct and online and social media screening in the hiring process below. 

What’s the #1 question you get from clients around workplace misconduct? 

Much of the time, companies deal with workplace misconduct and other crises-related issues only after something bad has happened. Research shows that only 49% of businesses have a formal crisis communications plan. Unfortunately, Devata finds that when it comes to navigating workplace misconduct with her clients, similarly, “hindsight is 2020.” 

“Most often we get from clients questions after something bad happens,” Devata says. “Whether it is theft, fraud or violence, or there’s news in the media that comes out….the question is: what could we or should we have done? What can we do now?”

Rather than looking backwards, however, it’s important to understand the “proactive” steps companies can take in their “pre-employment or post-employment screening,” says Devata.

What’s the #1 question you get around online or social media screening? 

When it comes to online and social media screening, Devata gets numerous questions from various corporate stakeholders.  Some common questions relate to: “Can we look at social media?” “Is it important to look at social media? “Is social media going to provide anything, for example, that we wouldn’t have already obtained?” “Can we even use this information?”

These questions show Devata and her team just how many “misperceptions about social media and online screening” there are. “We often caution employers – specifically those outside of the HR departments, not to “Google” or look up people,” she says. “The reason being: we don’t want low-level supervisors and other untrained people in the workplace going and doing their own investigations.” Unlike HR and Recruitment professionals, untrained employees may not know “what information can be used under the law, what cannot be used, what you might have to get permission before you’re allowed to use it.” 

While hiring managers looking up candidates online can certainly lead to compliance issues for organizations, it’s important to know that there are, in fact, compliant ways companies can screen candidates online and social media content for misconduct in the hiring process. When done compliantly, like through a third-party screening solution, companies can reap benefits like uncovering instances of workplace misconduct during the hiring process, mitigating risk, and improving quality of hire.  

If an online or social media screen uncovers a candidate engaging in misconduct, what can employers legally do about it? 

In the legal and compliance world, there are so many gray areas. Some stem from the fact that each jurisdiction has their own local, state, and federal laws that companies and people must comply with. Others come from ambiguity in the laws. 

Despite that, there are some areas of the law that are concrete when it comes to workplace misconduct and online or social media screenings. That starts with validating that the information and profiles uncovered belong to the right person. “The first thing is you have to make sure the information that you’re looking at pertains to the person about whom you’re taking action,” says Devata. “People have common names. There are fake accounts of people. There is information that may or may not be the person that you’re dealing with. That’s why it is important to use a third party to assist in culling through the information.”

The next step is to ensure that the information found can be used when making hiring or employment decisions. The FCRA regulates how information can be obtained and outlines candidate and employee rights around navigating any issues or disputes. The EEOC and Title VII of the Civil Rights Act of 1964 outline several protected categories of information as well as how that information can be used in hiring and employment. Other states have additional regulations like “ban-the-box laws” or regulations differentiating what can be done about information based on whether something was done while someone is on or off-duty. “Employers really have to be careful,” Devata says. “They need to be careful about having any bright line rules that could run afoul of these laws.” 

This is why it’s so important to understand and properly interpret context. Devata offers examples around context that needs to be considered: “For example, what occurred? When did it happen? How old was the person at the time that it happened? What is the context? Was this a legal outside-of-work activity?” She restates, “Employers need to be mindful of the myriad of different laws that could apply when using this information.” 

The good thing for employers, however, is that they don’t need to navigate all of these issues on their own. 

Third party online and social media screening solutions can help. Devata says, “I think it’s really crucial for employers to understand using third parties who are experts in that field, whether it be in background screening generally with the use of criminal or credit information, but also in the social media space, it’s really important that they understand the information that they’re getting.” 

Overall, preventing workplace misconduct and improving quality of hire is important for organizations. But, how that goal is achieved is also important. 

The fact that online screening and social media screening solutions abide by legally compliant look-back periods, have tools and processes to verify profile identity, and have the experience needed to add in necessary context to posts makes these third-party solutions helpful to  employers who want to make the best and most compliant decision for the organization, team, and position. 

For more information about compliance around workplace misconduct, online screening, and even corporate officer responsibility, check out the The Legality of Online Screening white paper and last month’s #AskAnEmploymentLawyer post: Are CHROs Liable for Workplace Misconduct?

‍