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The Legality of Online Screening

By Lindsey Twigg on 13 May 2020
  • social media background checks

Compliance takes time, and commitment to safer, more equitable workplaces takes even more energy. Social media screening firms, therefore, have a unique responsibility to deliver relevant data in the safest, most accurate way possible. When considering a firm to partner with for a company’s social media screening needs, it's important to consider these three major areas of compliance in order to ensure that both business operations as well as employee safety are the utmost priority:

Federal Trade Commission

A pivotal moment for social media screening occurred in 2011 when the Federal Trade Commission (FTC) took interest. As the company who pioneered the industry, Social Intelligence became the focal point of an FTC investigation. The investigation consisted of a thorough review of operating procedures, product design, marketing efforts and policies. This review resulted in a letter of opinion, determining that “Social Intelligence is a consumer reporting agency because it assembles or evaluates consumer report information that is furnished to third parties that use such information as a factor in establishing a consumer's eligibility for employment. Since 2011, new companies have launched their own efforts to provide a social media screening service. As such, these newer companies have experimented with a variety of product adaptations and utilized the Social Intelligence FTC review as an outline for designating themselves as compliant consumer reporting agencies.

Federal Credit Reporting Act

Social media screening is an excellent way to protect the workplace from harassment, toxicity, and brand risk. That being said, in turn, social media screening firms should consider performing their own due diligence to provide the utmost security, integrity, and trust to their clients. One of the biggest ways social media screening (SMS) firms can ensure compliance is to follow procedure under the Fair Credit Reporting Act to the letter. Here’s what that could look like on both sides of the process:

For the individual, the SMS firm makes sure consent is obtained and a summary of rights under the FCRA is provided. Additionally, like any criminal background check, the firm also provides individuals with the opportunity to obtain a copy of their report.

For the employer, the firm ensures accuracy through identity resolution and reports only on business-related behavior (meaning behavior that could potentially cause problems in the workplace). The firm also provides reports solely for business-related purposes (i.e. the hiring process) and excludes information older than seven years.

Additionally, to protect both parties, the firm might also have procedures in place for a dispute-resolution process to ensure that incorrect or inaccurate information has a chance to be rectified.

EEOC and State Privacy Laws

SMS firms have the unique advantage of providing value to their clients by acting as an unbiased third party. It is particularly useful for businesses to comply with Equal Employment Opportunity Commission and similar state privacy laws. With diversity and inclusion initiatives intensifying across the board, businesses need every advantage they can get to make sure they are providing a level playing field in their hiring and recruiting process. An SMS firm can play an integral part of that game by redacting candidate protected-class information so that hiring managers can rest easy knowing they aren’t going to accidentally come across a piece of content (such as marital status or sexual orientation) that will compromise their unbiased judgment.

On top of that, SMS firms should also comply with the 26 state legislatures that have passed social media privacy laws specifically to regulate exactly how and when employers can access individuals’ social media accounts. These laws were originally developed in response to massive violations of privacy that involved asking for passwords to candidates’ social media accounts. These laws essentially restrict social media screening to publicly available information, which for most individuals is still the default setting--and a tremendous pool of personal data besides!

What is a Social Intelligence Report?

The Social Intelligence Report™ helps to eliminate hiring bias by delivering a scalable way to consider code of conduct issues without applying judgment to non-work related content. By automating the online screening workflow and making it compatible with other background screening programs, the Social Intelligence Report™ drastically reduces the risk of negligent hiring, harassment claims, and insider threats without the cost of an exhaustive online search.

Social Intelligence’s compliant and ethical approach is powered by a team of FCRA-trained analysts who can identify wholly human patterns like parody, sarcasm, or innuendo in flagged content. Day in and day out, Social Intelligence marries content and context so that nothing is misinterpreted or falsely attributed to an employment candidate.

Learn more about how social media screening gives you actionable insights into your candidates’ online presence by requesting a sample report today.