Health / Safety / Risk Mgmt
A background screening trend that recently emerged where employers used social network sites such as Facebook – the most popular social networking site with over 500 million active users worldwide – to run ‘Social Network Background Checks’ on job candidates should become even more prevalent in 2011, and increase the legal risks for employers.
No discussion about background screening these days is complete without an analysis of how the Internet is used for hiring. From social network sites such as Facebook and Twitter to blogs, videos on YouTube, and business connection sites like LinkedIn, employers focus with laser-like intensity on how to use the Internet for background screening job candidates. What is sometimes overlooked in the rush to use the Internet for background screening is the one question employers need to ask: What are the legal risks in using the Internet for hiring?
The answer involves issues of discrimination, authenticity, and privacy. If employers insist on using social network sites for background screening, then they must realize that much of the ‘new media’ available to them for background screening is still covered by current employment regulations.
Employers care about the content on social networking sites used by job candidates. A 2009 survey from leading job networking site CareerBuilder.com that found nearly half of employers use social networking sites to screen job candidates, more than double the amount from 2008. The survey of more than 2,600 hiring managers revealed that 45 percent of employers used social networking sites to research candidates and 35 percent of employers rejected applicants based on what was uncovered on social networking sites. Of these 35 percent:
- 53 percent cited provocative/inappropriate photographs or information.
- 44 percent cited content about drinking or using drugs.
- 35 percent cited bad-mouthing of previous employers, co-workers or clients.
- 29 percent cited poor communication skills.
- 26 percent cited discriminatory comments.
- 24 percent cited misrepresentation of qualifications.
- 20 percent cited sharing confidential information from a previous employer.
Allegations of discrimination are one critical area where employers can find themselves in hot water when utilizing social network sites for background screening. Employers may be accused of disregarding candidates who are members of protected classes by passing over the online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religious affiliation, marital status, or medical condition. There may even be photos showing a physical condition protected by the Americans with Disabilities Act (ADA) or showing candidates wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as Too Much Information (TMI). Once employers are aware that an individual is a member of a protected group, it is difficult to claim that they can “un-ring the bell” and forget they saw such information.
Another issue facing employers using the Internet to source is authenticity. In other words, if negative information about a candidate is found on the Internet or a social networking site, how is the employer supposed to verify that the information is accurate, up-to-date, authentic, and if it even belongs to or applies to the candidate in question?
Yet another issue is legal off-duty conduct. A number of states protect workers engaged in legal off-duty conduct. If such a search reveals legal off duty conduct, a candidate can claim they were the victims of illegal discrimination
All of these concerns are just the tip of the iceberg when it comes to social network background checks. Employers need to be very careful when it comes to harvesting information about job candidates from the internet. Employers need to know how to protect themselves against allegations of discrimination and issues with authenticity and privacy if no further action is taken after the discovery on the Internet that a person is a member of a protected class or when finding negative information. How and when an employer obtains such information is critical.
For employers wanting to use social network sites to screen a candidate, the safest path when using the Internet is to obtain consent from the candidate first and only search once there has been a conditional job offer to that candidate. This procedure helps ensure that impermissible information is not considered before the employer evaluates a candidate using permissible tools such as interviews, job-related employment tests, references from supervisors, and a background check.
At that point, after using permissible screening tools, the reason for employers to search social networking sites would be to ensure that there is nothing that would eliminate the person for employment, such as saying nasty things about the employer’s firm, or if the applicant engaged in behavior that would damage the company, hurt business interests, or be inconsistent with business needs.
In addition, employers in the sourcing stage may want to consider having a clear internal policy and documented training that Internet sourcing is not being used in violation of federal and state discrimination laws and that only factors that are valid predictors of job performance will be considered, taking into account the job description, and the knowledge, skills, and abilities required for the position. It also helps to have objective and documented methods and metrics on how to source and screen on the Internet.
Another method employers may use is to have a person in-house not connected to any hiring decisions review social network sites, in order to ensure impermissible background screening information is not given to the decisions maker. The in-house background screening should also have training in the non-discriminatory use of background screening information, knowledge of the job desiccation and use objective methods that are the same for all candidates for each type of position. That way, only permissible information is transmitted to the person that is making the decision. Again, this is best done post-offer but pre-hire and with consent. An employer may be looking for online information concerning upon job suitability. For example, did the potential employee say derogatory things about past employers or co-workers, or demonstrate that they are not the best candidate for the job.
Although employers may request that background screening firms perform this function, there are a number of drawbacks. First, a background screening firm does not have the same in-depth knowledge the employer has of the details of the position. In addition, if a social network background check is done by a background screening firm, the search falls under the federal Fair Credit Reporting Act (FCRA) which requires a background screening firm to maintain reasonable procedures for maximum possible accuracy. Because a background screening firm has no way of knowing if the online information is accurate, it is difficult for background screening firms to perform this service consistent with the FCRA. In other words, due to the FCRA, background screening firms may not be best suited to perform these types of ‘social network background check’ searches.
The bottom line is that employers must approach using social network background screening with caution before assuming everything is fair game in the pursuit of job candidates or otherwise face potential legal landmines that could destroy their business. On the otherhand, it can be argued that is some situatins, , NOT checking these sites is negligent.
Lester S. Rosen is an attorney at law and president of Employment Screening Resources (ESR) , a national background screening firm headquartered in Novato, CA. See; www.ESRcheck.com
He has authored two books on screening and hiring: “The Safe Hiring Manual: The complete guide to keeping criminals, terrorists, and imposters out of your workplace," and “The Safe Hiring Audit: The employer’s guide to implementing a safe hiring program."
He is considered an expert in employment screening background checks, and is a speaker frequently at nationwide human resources, fraud and security conferences. >>>
He has testified as an expert on employment screening background checks in negligent hiring cases in California, Florida and Arkansas.
He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as its first co-chair.
Mr. Rosen graduated UCLA with Phi Beta Kappa honors, and received a J.D. degree from the University of California at Davis School of Law, serving on the school Law Review. While practicing law, he specialized in criminal law and his practice has included federal crimes and death penalty cases. He holds the highest attorney rating of A.V. in Martindale-Hubbell. He has served as an adjunct professor of law teaching criminal law and procedure at Hastings College of the Law, and served as faculty member and program chairman of the Hastings College of Trial Advocacy in San Francisco.
He has also been active in working on legislation in California. In 2002, he worked with the California legislature to amend AB 655, a law that adversely affected employers in the area of reference checks and hiring in California. He continues to be involved in working on California legislation effecting employers.
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