By Les Rosen
Employers and recruiters have discovered a treasure trove of information about potential job applicants on social media sites such as Facebook, LinkedIn, and Twitter, and so-called ‘social media background checks’ are becoming more popular and prevalent than ever. However, the use of social media background checks for job applicants has become controversial and can present legal risks. Failure to utilize social media resources can arguably be the basis of a negligent hiring claim if an unfit person was hired for a position where a search of the internet may have raised a “red flag.” Conversely, employers face numerous landmines and pitfalls that can include that include privacy, discrimination, and accuracy issues. Lawsuits and developments in this area will likely be an ongoing topic in 2012.
The Lure of Social Media Background Checks
It is important to keep in mind that not only will social media searches be a critical part of pre-employment background screening, but there may be considerable activity in how social media is handled after a person is hired. Every employer should have a social media policy for current employees. This article, however, is focused on pre-employment selection and screening.
No discussion on employment screening background checks these days is complete without an analysis of how the Internet is used for uncovering information about job candidates. A social media search allows an employer to literally “look under the hood,” and hopefully find out who a person really is. Not only does a social media search help in finding candidates, but it may prove to be an invaluable due diligence tool. For example, if a person’s blogs, social networking page, or tweets appear to promote inappropriate sexual activity or perhaps threats of violence, an employer may want to think twice before putting such a person in contact with groups at risk, such as children, the aged, or the infirmed. Likewise, if a person has made derogatory or unprofessional comments about co-workers or past employers, or engaged in online harassment, those are things that any Human Resources manager may be interested in knowing about.
However, while employers and recruiters may feel they hit the information jackpot on potential job applicants by using social networking sites such as Facebook and Twitter, business networking sites like LinkedIn, videos on YouTube, search engines like Google, and various blogs and posts, the unrestricted use of social media background checks can land them in hot water since just because certain information is online does not mean it is risk free or even true.
When using the Internet to screen job applicants, employers and recruiters can encounter the following legal risks and potential landmines:
- Too Much Information (TMI): Discrimination Allegations: When using the Internet for screening, employers and recruiters may become aware that job candidate is a member of a protected group based on race, creed, color, ancestry, nationality, medical condition, disability (including AIDS), marital status, sex (including pregnancy), sexual preference, or age (40+), which can lead to allegations of discrimination if the candidate does not get the job. All hiring decisions need to be based upon non-discriminatory information that is a valid predictor for job performance.
- Too Little Information (TLI): Failure to utilize all available resources could potentially expose employers to lawsuits for negligent hiring if a victim could show that information was easily accessible online that could have prevented a hiring a person that was dishonest, unfit, dangerous, and unqualified, and it was foreseeable that some harm could occur. Employers failing to use social media web sites can potentially be sued for not exercising due diligence. Employers may be in a Catch-22 situation where they are in trouble if they use Internet background checks and are in trouble if they do not use Internet background checks.
- Credibility, Accuracy, and Authenticity Issues: Is the information found on the Internet about job applicants even credible, accurate, and authentic – in other words, true. How do employers and recruiters know if information found online about an applicant is true?
- Computer Twins & Cyber-slamming: Most people have “computer twins” online, people with the same names and even a similar date of birth. Employers and recruiters need to make sure what they see online actually refers to the applicant in question. Also, “online identity theft,” false postings under another person’s name, and “Cyber-slamming,” online smearing with derogatory comments that is usually done anonymously, can be a problem.
- Legal Off-Duty Conduct: If a social media search reveals legal off duty conduct, a candidate can claim they were the victims of illegal discrimination. A number of states protect workers engaged in legal off-duty conduct and have prohibitions limiting use of private behavior for employment decisions. However, employers do have broader discretion if such behavior would damage a company, hurt business interests, or be inconsistent with business needs.
- Privacy Issues: Another problem with Internet background checks yet to be fully explored by the courts is privacy. Everything online is not necessarily “fair game” for employers and recruiters. However, if users do not adjust the privacy setting so that their social network site is easily available from an Internet search, they may have a more difficult time arguing that there is a reasonable expectation of privacy. The bottom line is that the question of whether an applicant has a reasonable expectation of privacy can depend upon the specific facts of the case being litigated, and the issue is far from settled. Until the courts sort this out one thing does seem certain: If an employer uses subterfuge, such as creating a fake online identity to penetrate a social network site, the privacy line has probably been crossed.
- Pre-Texting and Fake-Outs: Employers should not simply assume that anything on the web is “fair game” and freely available without consequence. One area where an employer would be flirting with particular trouble is if information is obtained by manipulating the sites. This could be done by creating multiple identities or by using “pretexting,” which can include pretending to be someone else or something you are not.
- Should Background Screening Firms Conduct Internet Background Checks?: Employers can go to third party firms for “social media background checks” that will search the Internet for information about job applicants and assemble a report on an applicant’s online identity. However, employers and recruiters should realize that background screening firms using social media information must follow the same federal Fair Credit Reporting Act (FCRA) rules regulating more traditional information sources such as criminal record checks and credit report checks. Therefore, such social network background checks need to have full FCRA compliance which requires a background screening firm to maintain reasonable procedures for maximum possible accuracy. Since a background screening firm has no way of knowing if all of the online information is accurate or even belongs to the applicant in question, it is difficult for screening firms to perform this service consistent with the FCRA. In other words, screening firms may not be best suited to perform these ‘social media background checks.’ If a consumer demands a reinvestigation and a removal of information, a screening firm may be hard pressed to demonstrate that the entry was in fact placed by or related to the applicant, and in that situation would be legally required to remove the matter from a report.
For background screening purposes, the issue of authenticity and accuracy is of particular concern. Employers should consider if what a job applicant says online is true, and if true, whether it would be a valid predictor of job performance, or whether it would be employment related at all, as well as non-discriminatory. After all, people have been known to exaggerate or make things up. Employers need to make sure what they see online actually refers to the job applicant in question.
Under FCRA section 607(b), a Consumer Reporting Agency (CRA) performing background checks needs to exercise “reasonable procedures to assure maximum possible accuracy.” The issue is how to know what information is real or authentic before reporting it to an employer. If a social networking site contains negative information, how is the firm that supplies the information to go about verifying that it is accurate, authentic, and belongs to the applicant? If the search happens to turn up a criminal record, the obligations are even heavier.
Social Media Background Checks Increasing but Employers have Reservations
Despite the potential risks and uncertainties involved with social media background checks, employers seem intent on using Internet search engines such as Google and social networking sites like Facebook and Twitter for the background screening of job applicants. Whether appropriate or not, the Internet is a public domain, and information about job applicants is being used to screen applicants.