Social Network Background Checks of Job Applicants Present Challenges for Employers and Recruiters

By Lester Rosen, ESR President

It appears that a new industry is popping up, whereby employers can go to third party firms that will scour the internet and locate and assemble a dossier on an applicant’s cyber identity.  These “social network background checks” will search social networking sites like Facebok and Twitter, blogs, and anywhere else on the Internet for information about job applicants, including things they may have put online yeas ago and completely forgotten about.

Companies providing social network background checks present a number of challenging questions that HR professionals and recruiters will need to deal with:

  • First, such a site may well be categorized as a Consumer Reporting Agency (CRA).  Under the FCRA section 603(f) a CRA can be a third party firm that engages is the “assembling or evaluation” of consumers for employment.   That means that these types of sites are essentially background checking firms, with all of the same legal duties and obligations of any other background firm.  Therefore, such sites need to have full FCRA compliance, including client certifications under FCRA section 604 as well as adverse action notices and numerous other obligations, such as re-investigation upon request. Background checking is subject to heavy legal regulation.  
  • Another issue is authenticity. Under FCRA section 607(b), a Consumer Reporting Agency needs to exercise “reasonable procedures to assure maximum possible accuracy.”  The issue of course is how to know what is real or authentic before reporting it to an employer.  If a social site contains something negative, 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 should happen to turn up a criminal record, then the obligations are even heavier.  A CRA must either give notice to the applicant at the same time it notifies the employer that a criminal record is being reported or it must confirm the information is complete and up to date, which typically means going to the courthouse.  In California, state law does  not even allow he notice option.  
  • There is also the possibility that some of the information obtained from a social networking may meet the definition of a special kind of background report called an “Investigative Consumer Report (ICR).” If so, there are additional special rules if matters that are likely to adversely impact employment, such as revivifying the information from another source or ensuring the information came from the best possible source.
  • Another big challenge for these types of web sites is discrimination allegations.  Employers or recruiters 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. All of those are things that may be revealed by an online search.  There may even be photos showing a physical condition that is protected by the Americans with Disabilities Act (ADA) or showing someone wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as Too Much Information or TMI.

The problem is that once an employer recruiter is 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 he or she ever saw it.  Employers may be exposed to “failure to hire” law suits based upon discrimination or Equal Employment Opportunity Commission (EEOC) claims. 

Another problem yet to be fully explored by the courts is privacy.  Contrary to popular opinion, everything online is not necessarily fair game.  Certainly if a person has not adjusted the privacy setting so that his or her social network site is easily available from an Internet search, that person may have a more difficult time arguing that there is a reasonable expectation of privacy.  However, the terms of use for many social network sites prohibit commercial use and many users literally believe that their social network site is exactly that, a place to freely socialize.  The argument would be that in their circles, it is the community norm, and a generally accepted attitude, that MySpace or Facebook pages are off limits to unwelcome intruders, even if the door is left wide open.  After all, burglars can hardly defend themselves on the basis that the door was unlocked so they felt they could just walk in. 

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  

These concerns are just the tip of the iceberg.  Employers need to be very careful when it comes to harvesting such information from the internet.  How and when an employer obtains such information is critical. For example, employers may have increased protection if such searches are done after there has been a conditional offer, and consent has been given.   Legality may also depend on whether the employer has well written job description with the essential functions of the job defined, so that information used from such searches can be justified.  Another issue is whether employers engage in any sort of objective analysis using metrics. 

The bottom line: Before using the internet to screen candidates, or using third party services, see your labor attorney.  

To read a related article on social network background checks, ‘The Rush to Source Candidates from Internet and Social Networking Sites,’ visit: http://www.esrcheck.com/wordpress/2009/08/01/the-rush-to-source-candidates-from-internet-and-social-networking-sites-2/.

For more articles on social network background checks, visit: http://www.esrcheck.com/wordpress/tag/social-networking-sites/page/2

For more information on background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source: http://www.esrcheck.com/wordpress/tag/social-networking-sites/page/2/