Besides the FCRA (enforced by the Federal Trade Commission and the Consumer Financial Protection Bureau), the EEOC is much interested in your hiring practices, and use of related candidate information.

I recently heard an experienced attorney who once worked for the EEOC say “… The EEOC assumes that if you have information on potential or existing employees, you will abuse it.”  So once again, it seems like the best practice is to not acquire personal information until it is needed, perhaps at the time a conditional offer is made.  While this personal information may be of critical importance in making sound personnel decisions, careless or imprudent use increase your chances of costly litigation expenses.

The EEOC is also concerned about “disparate impact” (Google it), and in our context this could mean – do your social media investigations tend to impact one group more than another?  For example, a previous post (May 20 2015) described research showing candidates whose public profiles indicated that they were Muslim were less likely to be called for interviews than Christian applicants. The difference was particularly pronounced in parts of the country where more people identify themselves as conservative. In those places, Christian applicants got callbacks 17% of the time, compared with about 2% for Muslims.”  Yes, this is disparate impact.

There are not hard and fast rules for this – good information is needed to make good decisions, and then you’ve got to just use your best judgment.  Which leads to another best-practice in hiring (and EEOC avoidance): The EEOC doesn’t like “bright line rules” and “once size fits all” approaches in arriving at hire/don’t hire decisions.  For example, don’t make a rule that “If we see a felony conviction in a credit and criminal background check or in a Social Media Background report we don’t hire them.”

There are guidelines about all of this, but these are not statutes; much is unclear.  And once again, get the information you need at the right time, make an individualized assessment and then use your best judgment.