Employment Screening Resources (ESR), a nationwide background check provider accredited by the National Association of Professional Background Screeners (NAPBS), has released a new white paper titled ‘Managing the Risks of Using the Internet for Employment Screening Background Checks’ to provide an informative introduction to the risks and roadblocks employers and recruiters face using Internet search engines like Google and social network sites such as Facebook for recruitment and employment screening, as well as potential solutions to avoid legal issues. The complimentary white paper from ESR is available for download at: http://www.esrcheck.com/Download/.
“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,” says ESR founder and CEO Lester Rosen, author of ‘The Safe Hiring Manual,’ a comprehensive guide to employment screening. “However, while employers and recruiters have discovered a treasure trove of information on potential job applicants by using social networking sites such as Facebook and search engines like Google, the unrestricted use of social media background checks can land them in hot water since just because certain information is online does not mean that it is risk free or even true.”
According to the white paper, 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.
- 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.
- 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.
- What is “Fair Game” on the Internet?: 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. Employers need to know how to protect themselves against allegations of discrimination and issues with authenticity, accuracy, credibility, and invasion of privacy.
- 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.’
A 2011 survey from the Society of Human Resource Management (SHRM) cited in the white paper shows that, contrary to popular belief, only approximately one-quarter (26 percent) of organizations used online search engines to screen job candidates during the hiring process while even fewer organizations (18 percent) used social networking sites. The survey also found that 64 percent of organizations had never, or no longer, used online search engines to screen job candidates while 71 percent of organizations had never, or no longer, used social networking websites for that purpose. The reasons why some organizations did not use social networking websites included the following:
- Two-thirds (66 percent) of organizations indicated they did not use social networking websites due to concerns about the legal risks/discovering information about protected characteristics such as age, race, gender, and religious affiliation.
- Nearly one half (48 percent) of organizations did not use these sites because they could not verify with confidence the information from the social networking website pages of job candidates.
- Another 45 percent of organizations indicated that the information found on the social networking sites may not be relevant to a job candidate’s work-related potential or performance.
The white paper also provides solutions for using Internet background checks for employers, recruiters, and job applicants. ESR offers steps for employers to take when considering using search engines or social network sites for screening that, among other things, include:
- Developing a written policy and procedures for social media searches designed to locate information that is a valid predictor of job performance and non-discriminatory.
- Focusing on objective criteria and metrics as much as possible.
- Writing job descriptions that contain the essential functions – as well as the knowledge, skills, and ability (KSA) – required for the job.
- Waiting until after there has been a conditional job offer – after consent from the job applicant and a job offer is made contingent upon completion of a background check that is satisfactory to the employer – to perform a social media search.
- Using a person in-house not connected to hiring decisions to review social media sites in order to ensure impermissible or discriminatory information is not given to decision makers.
“The bottom line when using the Internet for employment screening background checks is: Proceed with caution,” says Rosen, a frequent speaker on safe hiring issues for ‘ESR Speaks’ at http://www.esrcheck.com/ESR_Speaks.php. “Since there has yet to be a clear law or court cases that set forth how to proceed in this area, employers and recruiters may want to approach the Internet with some caution before assuming that everything is fair game online in the pursuit of job candidates,” he adds.
The complimentary white paper from ESR, ‘Managing the Risks of Using the Internet for Employment Screening Background Checks,’ is available for download at: http://www.esrcheck.com/Download/. To learn more about background checks, visit Employment Screening Resources (ESR) at: http://www.ESRcheck.com.
About Employment Screening Resources (ESR):
Employment Screening Resources (ESR) literally wrote the book on background screening with “The Safe Hiring Manual” by ESR founder and CEO Lester Rosen. ESR streamlines the screening process and reduces administrative overhead though its proprietary technology solutions. ESR is accredited by The National Association of Professional Background Screeners (NAPBS®), a distinction held by less than two percent of all screening firms. This important recognition was achieved by successfully passing a third party audit demonstrating compliance with the NAPBS Background Screening Agency Accreditation Program. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about ESR, visit http://www.ESRcheck.com.