Legal Issues Surrounding Social Media Background Checks

The prevalence of social media sites has introduced an era in which businesses use Internet research in their employee background checks. In fact, 54% of businesses have reported using Internet research before hiring new employees. Businesses who use the internet to research their prospective employees must be careful they do not violate state and federal law by discriminating based on protected factors such as race, color, etc. Because of the legal risks involved in Internet research, some businesses have turned to outside vendors for this research to reduce their legal exposure. There are, however, also problems with the use of these vendors. At least one of them, Social Intelligence Company, has received a letter regarding its practices from the Federal Trade Commission (FTC) and two U.S. senators. Social Intelligence’s practices are being examined to ensure that they comply with privacy and intellectual property laws in their social media background checks.

 

With regard to social media background checks, the FTC stated that the same rules apply to Social Intelligence as to consumer reporting agencies “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.” However, the FTC also stated that the information provided by Social Intelligence about its policies for compliance with the rules does not warrant further action, but it should not be construed as a determination that a violation did not occur. The FTC reserves the right to take further action. This statement by the FTC likely increased the comfort of businesses using outside vendors for their Internet research; however, two U.S. Senators also posed questions to Social Intelligence regarding their practices.

The Senators have questioned what Social Intelligence is doing to ensure that the information it gathers is accurate and whether they are respecting the consumers’ right to online privacy. Some of these questions involve how the company distinguishes between applicants with common names, whether the company is attempting to gather information that the consumer has endeavored to restrict, and whether the company is violating the service agreements that prohibit the sale of user’s content without permission of the user when they provide screenshots to businesses. Businesses using outside vendors like Social Intelligence to gather Internet research should ensure that the vendor is complying with applicable laws. They should establish an internal procedure regarding the use of Internet research to ensure that they do not run into any legal complications from this research.

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