From discrimination to invasions of privacy: The dangers of social media background checks

Social media background checks are slowly becoming the norm. According to CareerBuilder, 70 percent of employers use social media in some way to vet their employees. In most cases, these checks are innocent -- or at least well-intentioned. Employers want to make sure the people they hire are conducting themselves online appropriately and respectfully. No brand wants one of their employees sending out offensive tweets on a regular basis or badmouthing his or her boss on Facebook.

Intention is not the only thing that matters with social media background checks. In fact, employers can, and do, stumble into a mess of legal and ethical implications by looking at a job candidate’s Facebook page or Twitter account. Here are some of the biggest dangers of social media background checks.

• Bias and discrimination

There are certain pieces of information employers are not allowed to ask about on job applications or in interviews. Details about a person’s sexual orientation, race, gender identification, religion, nationality, political affiliation, and marital status are off the table.

Not only are these details irrelevant to virtually any job, but they can also compromise the hiring manager by rendering that person unable to make an unbiased hiring decision. This bias, unconscious or not, can lead to employment discrimination, which can result in lawsuits, reputational damage for the employer, and other issues.

• Unpredictability

What if employers vow not to look at any information on a social profile that could put them at risk for discriminating against a protected class? Hiring managers often assume they can make this choice, but they are mistaken: you never know what you are going to find when looking at a person’s social media profile.

On one Facebook profile, potentially sensitive information might visible only in the "About" section. On another profile, it might be evident just from photos, recent posts, or other immediately visible content. The unpredictability of social media profiles and posting habits makes it impossible for employers to look at Facebook or Twitter without potentially discovering information they aren’t supposed to know.

• Legal violations

Perhaps the worst thing an employer can do in the process of running a social media background check is to require a candidate to hand over access to their social media profiles. In some cases, employers provide spots on their job applications where they ask applicants to provide social media usernames or even passwords. In other cases, employers ask candidates to login into their Facebook profiles during a job interview so hiring managers can look at the contents.

These practices save employers from having to search fruitlessly for candidates on social platforms. They also help circumnavigate privacy settings. However, these practices are also extremely problematic and are even against the law in certain parts of the country. According to the Society for Human Resource Management, many states -- including California, Colorado, Illinois, Maryland, Michigan, and New Jersey -- have made it illegal for employers to request social media usernames or passwords from their candidates.

• Violations of protected activity

Employees are strongly discouraged from complaining about bosses and managers online. This type of behavior not only looks petty to friends and family but is also precisely what employers are looking for when they do social media background checks. What very few people realize is that complaining about your boss on social media is something that is considered a "protected activity" under the National Labor Relations Act.

Commiserating about a boss or supervisor to fellow employees is protected under the law. Since most people are friends with a few of their colleagues on social media, employees often cannot be punished for blasting supervisors online.

• Privacy infringements

Employers use social media background checks to see how their candidates behave in real life. In most cases, it’s none of an employer’s business what a person does when they aren’t at work.

Most people would agree someone posting a photo of themselves doing shots of tequila, wearing a provocative outfit, or participating in a suggestive or explicit act might not always be tasteful. But if these behaviors aren’t happening on business property or during work hours, they have no relevance to any hiring decision. Employers should beware of the ethical implications of bringing these private life matters into the workplace.

• Consistency and verifiability

State laws do not bar employers from using social media for any form of background check, but they do make it more difficult. Left to their own devices, employers must use social network search functions to find their candidates on LinkedIn (usually pretty easy), Facebook (more difficult), and Twitter (next to impossible).

This added challenge brings to light issues with the consistency and verifiability of social media background checks. Employers can rarely be sure if they’ve found the correct social media profile for a candidate. Since many candidates are difficult to find on social media -- whether because they don’t have active accounts or have activated robust privacy settings -- there is no consistency to the social media background check process.

Someone who is very active on Facebook could have a disadvantage compared to a candidate who doesn’t have a profile. With any background check, consistency in procedures from one applicant to the next is paramount. That consistency cannot be achieved with social media background checks.

Employers and job seekers alike should be aware of the rocky implications of social media background checks. More traditional background checks -- from criminal history searches to educational verifications to reference checks -- are considerably more effective and less legally or ethically treacherous. Even though more and more employers are using social media to vet their candidates, there are countless reasons that the practice is time-consuming at best and extremely risky at worst.

Photo credit: Rvan Alex / Shutterstock

Michael Klazema is the Chief Marketing Technologist at VODW and the lead author and editor for backgroundchecks.com. He has over two decades of experience in digital consulting, online product management, HR, employee screening, and technology innovation.