Pre-Employment Screening Background Check Blog for Employers, Human Resources and Security by ESR

By Les Rosen
Employment Screening Resources (www.ESRcheck.com)
Employers and recruiters have uncovered what appears to be a treasure trove of applicant information on the internet. By searching the internet and social networking sites such as Facebook or MySpace, recruiters feel they are effectively able “to look under the hood” and try “to get into an applicant’s head.”

Unlike the traditional hiring tools such as team interviews, psychological testing, calling past employers, and background checks, social networking sites hold out the promise of revealing the “real applicant.” Statistics from various surveys, news articles, and anecdotal evidence confirm that there is an increased use of social networking sites to screen candidates.

Stories from recruiters show why these sites are so enticing.

One recruiter recounts how she had found “The Ideal Candidate” for a prestigious consulting firm. Then, just out of curiosity, she ran the applicant’s phone number on a search engine, and – wow! Up popped some rather explicit ads for discreet adult services that the applicant was apparently providing at night. Another recruiter tells the story of finding an applicant’s MySpace page, where the intern had demonized his firm, his boss and his coworkers in considerable detail and by name.

Here is the usual approach for a recruiter utilizing the internet to screen candidates. Search by name for the candidate. Refine the search by taking the applicant’s name and then adding the terms “Facebook” or “MySpace.” Next, a recruiter can go to MySpace and Facebook directly and see whether they find a site belonging to the applicant. Depending upon how a user chooses to set his or her own privacy settings, finding information on a social network site can be very hit or miss. Also, a recruiter can search a blog search engine, such as  www.google.com/blogsearch. Business sites such as Zoominfo or LinkedIn can be run.

This article, however, examines why such an apparently easy to use and readily available tool has its dangers and drawbacks.

No Court Cases of Record Yet

At this point in the evolution of social networking, there are no published cases yet on point. Lawsuits take time to work their way through the courts until an appellate court is finally called upon to issue an opinion. However, it is all but certain that some day an employer will land in court being sued on allegations of discrimination or a violation of privacy for making use of a social networking site in the hiring process.

One reason that the use of social networking sites presents a risk stems from their original purpose. In the beginning, users intended to limit access to friends or members of their own network, arguably creating a reasonable expectation of privacy. It’s like a “cyber high school,” but instead of seeing your friends near your locker, you can see friends and make contacts all over the world. Younger workers in particular may well regard invading their social network sites in the same way older worker may regard someone that crashes a private dinner party uninvited – a tasteless act that violates privacy.

The conventional wisdom, however, is that anything online is fair game because any reasonable person must understand that the whole world has access to the internet.

When analyzing the privacy issues, an employer may want to take the “Las Vegas test.” Assume you are at a business meeting in Las Vegas, and at the end of the day you adjourn with professional colleagues to a cocktail lounge in the hotel lobby. Several drinks later, you engage in a very frank exchange about your employer or co-workers. You may be indiscrete or even act a little silly. How would you feel if a colleague took photos with a cell phone and sent them to everyone you knew, along with some of your more interesting comments? Technically, you were “in public” – in a public cocktail lounge. True, but most people would still call it an invasion of privacy. This is based on an objective belief founded on broadly based and widely accepted community norms that what goes on in a private conversation should not be seen by the entire world, even if it occurred in a public venue where anyone could have seen or heard.

For many young workers today, social networking sites are the equivalent of that Las Vegas cocktail lounge!
Even though they communicate and share photos in a forum that can be public, there is sense that what goes on in MySpace or Facebook stays there and should stay there. This argument is buttressed by the fact that in order to enter some social networking sites, a user must agree to “terms of use” and to get details of another site member, the new user must set up their own account. Additionally, these types of websites have “terms of use” typically do not allow “commercial” uses, which can include screening candidates. Since a user must jump through some hoops, it can be argued that there is an expectation that the whole world won’t be privy to confidential information.

On the other hand, a recruiter can argue that the routine “terms of use language” where someone simply hits the “I agree” button is not much of a privacy barrier. In addition, if an applicant fails to utilize the privacy controls provided by the website, that undercuts any reasonable belief that what was on the website would remain confidential.

This Issue Far From Being Settled

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. Frankly, it could be decided either way.

That is why recruiters should not simply assume that anything on the web is fair game.

One area where an employer or recruiter would be flirting with particular trouble is if information from Facebook or MySpace 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. For example, Facebook allows greater access into sites within your own network. If a recruiter were to violate Facebook rules and create fake identities just to join a network belonging to an applicant, that would likely cross over into the realm of employer behavior that is overly intrusive and invades too deeply into private matters.

Off-duty conduct is another tricky area. Some states 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

Is It Discrimination?

Discrimination can also become a substantial issue. A candidate may say or depict all sorts of things that reflect race, color, religion, national origin, ancestry, medical condition, disability (including AIDS), marital status, sex (including pregnancy), sexual preference, age (40+), or other facts an employer may not consider under federal law or state law.

This can give rise to the problem of “Too Much Information,” also popularly referred to as “TMI.” The employer’s own search of these sites can make an employer knowledgeable of factors that should NOT be considered for employment purposes. The issue then becomes: “How do you unring the bell?” How do you prove that you didn’t use the information you found as part of your hiring decision?

A related issue is whether a firm is treating all applicants in a similar fashion. If recruiters or human resource staffers are performing internet searches on a hit or miss basis, with no written policy or standard approach, an applicant that is subject to adverse action as a result of such a search can potentially claim to be a victim of discrimination. 

Also problematic is that on social network sites, a recruiter may view photos, personal data, discussion of personal issues and political beliefs, behavior at parties, and other information that an applicant may not have intended for the world to see. Employers may have to consider whether what a person says on their site is true, and if true, whether it would be a valid predictor of job performance – if fact, whether it would be employment related at all. After all, people have been known to exaggerate or make things up. They may believe they are just having fun or spoofing their friends.

Or if a site shows, for example, that an applicant has a tattoo or a piercing, what then? Employers may need to ask themselves whether having a tattoo is really a good reason not to hire someone.
Employers that hire younger workers may need to come to grips with new generational differences.

One rule to remember: If a website is searched by a background screening firm on behalf of an employer, then consent and certain disclosures is mandated under the federal Fair Credit Reporting Act (FCRA).

What’s REAL on the Internet?

In addition, how do you know what is “real” on the internet? How do you know that the “name” you found is your applicant? You don’t. With more than 300 million Americans today, most of us have “computer twins” (i.e. people with our names and even a similar date of birth). There is also the question of how does a recruiter even know for sure the applicant actually wrote the item or authorized its posting? How doe the recruiter know if its even true, or just a matter of someone being silly with their friend?

There are anecdotes on the internet of false postings under another person’s name – a sort of “cyber identity theft.” If anonymous information is posted, such as in a chat room, there is the new phenomena of Cyperslamming, where a person can commit defamation without anyone knowing who they are.

What Are the Lessons for Employers and Recruiters?

Using the Internet to screen candidates is not risk-free, especially when it comes to social networking sites.
There are no legal cases yet, but news travels fast on the web, and employers who rely overly much upon social networking sites may find that job applicants are not as eager to look at their firm.
If an employer or recruiter uses the internet, they should first consult their attorney in order to develop a written policy and a fair and non-discriminatory procedures.

For legal protection, employers should considering obtaining consent so that applicants are on notice that their web persona is fair game. Employers should not use any fake identities or engage in “pretexting” to gain access to information.

The most conservative approach is to perform an internet search AFTER there is consent and a job offer is made contingent upon completion of a background check that is satisfactory to the employer.
For job applicants, the advice is simple: Don’t be the last to know what a web search about you would reveal.

If you do not want employers looking at your social networking site, then set the privacy parameter to “restricted use only.” As a savvy applicant, you can even go on the offense and create an online presence that helps you get a job!

BIO: Lester S. Rosen is an attorney at law and President of Employment Screening Resources (www.ESRcheck.com), a national background screening company located in California. He is the author of, “The Safe Hiring Manual–Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace.” (512 pages-Facts on Demand Press), the first comprehensive book on employment screening. He also authored, “The Safe Hiring Audit,” (286 pages/Facts on Demand Press).

He is a consultant, writer and frequent presenter nationwide on pre-employment screening and safe hiring issues. He has qualified and testified as an expert witness on issues surrounding safe hiring and due diligence. His speaking appearances have included numerous national and statewide conferences.

Mr. Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) a professional trade organization for the screening industry which has over 300 members. He was also elected to the first board of directors and served as the first co-chairman in 2004.

ESR has identified the following trends for 2009 in its second annual report on trends in the screening industry and safe hiring.  The full report is online at:  http://www.esrcheck.com/2009-trends-backgroundscreening-industry.php    

1. Increased Governmental Mandates: The federal and state governments for 2009 are likely to require more background checks, especially in sensitive industries.  In addition, right-to-work verification under the E-verify program will be a hot topic for 2009.
    
2. Privacy and Accuracy:  Privacy advocates in 2009 will be focused on resolving instances of noncompliance with the Fair Credit Reporting Act’s requirements for accuracy and dispute investigations.  A leading cause of inaccuracies comes from matching innocent job applicants to criminal records based upon the same, or a similar, name in a database, without re-verification of the record at the courthouse.  A new organization called Concerned CRA’s (www.concernedcras.com) has taken a stance against utilizing such databases without taking proper measures to ensure accuracy of criminal records.
    
3. Second Chance for Ex-Offenders: Unless as a society we want to build more prisons than schools or hospitals, something must be done to reduce recidivism and find employment for applicants with criminal records.  The State of New York, for example, to deal with this issue directly, has passed new “second chance” laws that became effective this year.  The laws place a greater emphasis on employers analyzing a past criminal record to determine whether there is a business justification to not hire a person, including providing job applicants with notice of these various new rights.
    
4. Consumer Protection Litigation:  As the screening industry matures, and applicants and their lawyers become much more informed about their consumer rights, it is likely that there will be an increase in litigation in 2009.  These lawsuits, including class action lawsuits, will be filed against screening firms, particularly when it comes to various notices required under the federal Fair Credit Reporting Act and accuracy requirements for the Background Screening Report results.
    
5. Impact of the Recession: As a result of the recession and higher unemployment, it is likely that employers will need to scrutinize applications even more carefully, to be on the watch for fraudulent credentials, such as inflated or fictional employment or education history.
    
6. Data Security, Data Breaches, and Offshoring Data: Since identity theft continues to be a national and international problem, expect even more emphasis in 2009 on data security and protection.  Closely related is the continuing issue of employers and screening firms sending confidential consumer data offshore for processing to places such as India for cost savings.  Once data leaves the United States, it is beyond U.S. privacy protections.  Concerned CRA’s (www.concernedcras.com) has also taken a stance against offshoring such data without notification to consumers.  The use of home-operator networks also presents an unnecessary risk to privacy as well.  There is no justification for personal information to be spread across kitchen tables and dorm rooms across America.
    
7. Accreditation by the NAPBS: The non-profit trade organization for the Screening Industry, the National Association of Professional Background Screeners (www.napbs.com) has announced the introduction of an accreditation program.  NAPBS has gone through an exhaustive process to develop “Best Practices” for the industry, and it is anticipated that firms will start going through the accreditation process this year. 
    
8. Social Network Sites:  The use of social networking sites as a pre-employment screening device will continue to be a hot topic in 2009, as more recruiters and HR professionals go online to satisfy their curiosity about candidates.  The problem: contrary to popular belief, just because it is online does not mean that it’s a good idea to utilize it without developing policies and procedures.  Online material can be inaccurate, discriminatory, and under certain circumstances, its use can be an invasion of privacy.  Stay tuned as more courts give their opinions on this issue. 
    
9. Integration of Services:  With the advent of “Web 2.0,” it is likely that technology will play an even bigger role in the coming year.  Seamless integrations with Applicant Tracking Systems allow paperless background screening systems at the click of a mouse.
    
10. International Background Checks: With mobility of workers across international borders, Due Diligence is no longer limited to just what an applicant has done in the United States and there will be stronger demand in 2009 for International Criminal, Education, and past Employment checks.

As ESR has noted in numerous presentations on the use of social networking sites such as Facebook or MySpace for employment, this is an evolving area of law that is still waiting for lawsuits to wind their ways through courts resulting in published judicial opinions.

An opinion was rendered by the United States District Court for the Eastern District of Pennsylvania on December 3, 2008.  Although this decision involved issues surrounding the awarding of a degree and does not deal with private employers,  this appears to be the first published decision that deals with the  issue of utilizing a social networking page to deny a consumer an opportunity and may contain important lessons for employers.

In that case, a would be teacher named Stacy Snyder sued administrators from Millersville University alleging that the school violated her freedom of speech by looking at her MySpace page, with the eventual result that Snyder did not receive an educational degree needed for a teaching certificate in Pennsylvania.

Snyder was engaged in a required student teaching program.   The high school teacher assigned to her was Nicole Reinking.  Even before the MySpace page became an issue, Reinking had already been critical of Snyder’s abilities, and noted an ignorance of basic grammar, punctuation, spelling and usage, as well as inadequate classroom management, poor understanding of the subjects she attempted to teach and her inappropriate manner with students.

The final straw was apparently the discovery by another teacher of Snyder’s MySpace page, where according to Snyder’s own testimony, she had on a pirate‘s hat, was holding a plastic cup containing a mixed drink that said, ”drunken pirate,”  and had a “stupid expression” on her face while giving the peace sign.  In addition, her page contained text that suggested her supervisor, Reinking, was the reason Snyder would not be applying for a job at that high school.

As a result, the superintend of the high school suspended Snyder from the student teaching program and therefore she was not entitled to obtain a degree in education, and was instead awarded an English degree.

In ruling against Snyder, the federal court noted the school had no legal authority to award her a degree in education where she did not complete the required student teaching program.  However, the Court went on to address the freedom of speech issue, ruling that as a teacher, Snyder only had first amendment rights as it related to public issues and not personal matters.

It is also important to note that prior to posing for her “Drunken Pirate” picture:

• Snyder was told during the orientation not to direct any students or teachers to a personal web page.
• Snyder admitted that she recalled being told not to post any information about her supervising teacher on her web page.
• A universality office had warned students that, in the past, a student was dismissed from the student teaching program for placing information about his supervisor on his personal web page.
• Her supervising teacher specifically warned her not to discuss her personal web page with her students.

Despite these warnings Snyder went ahead and told students about her web page and sought to communicate about personal matters with her students through her MySpace page.  Her post also made what appeared to be a negative reference to her teaching supervisor.

Because the case largely focuses on issues having to do with degree granting requirements for teachers in Pennsylvania, as well as issues involving free speech of teachers and students in public institutions, the actual holding of the case is limited when it comes to private employers.  In addition, since it was a federal district court case, it is not binding on other courts.

However, the case presents very interesting lessons in how a court may view claims by job applicants that their personal webpages were used unfairly.  What stands out in this case is how clear the University was in telling students NOT to post information about their supervising teachers on a personal web page and to not direct students to a personal site.   Despite these clear warnings from the university, she went ahead and did the very things she was told not to.

The bottom-line for employers:  Where such sites are used for pre-employment in the selection process, employers may gain significant advantage in a lawsuit by making it abundantly clear on their web site, job posting or other places that a person’s public online identity may be viewed.  By giving clear and conspicuous notice, an applicant would have a more difficult time claiming that they had a reasonable expectation of privacy on their social networking site.

Applicants can still, of course, maintain their own pages, and may well want to vent about a co-worker or supervisor.  However, an applicant may choose to either be more circumspect, or to make sure that their privacy settings are such that an employer could not view such pages by causal web browsing.  Advance notice by an employer, or even consent, does not mean necessarily that employers that resort to exceptional means to penetrate a social networking site, such as the use of pre-texting, are protected. There is still a privacy issue to be resolved on the use of social networking sites.  Nor is advanced notice a defense to discrimination.

For existing employees, an employer is well advised to ensure that they have clear written polices concerning personal online use, such as social networking sites, blogs, personal web pages, business connection sites, chartrooms and  other sites. See www.ESRcheck.com for more information.

Over the years, we have run into a number of “dumb criminal” stories. Some of our favorites:

• A guy decides to rob the local liquor store where he has been going every day for the past year.  He uses a paper bag from a grocery store, but forgets to put holes in for the eyes.  During the robbery, he needs to pick the bag up where is seen by the clerk (who, of course, knows him very well).  As he leaves the store with the stolen money and booze, he manages to leave his driver’s license behind for good measure.
• A criminal decides to defend himself in a theft case.  While cross-examining the victim, he asks. “And what exactly did I say as I was stealing your car?”

There is a website that has been collecting dumb criminal stories since 1999 that makes for interesting reading.  See:  http://www.dumbcriminals.com/