Tag Archives: Facebook

ACLU Calls Background Checks Asking for Social Network Passwords of Job Applicants Illegal Invasion of Privacy

Should employers be allowed to ask job applicants for the logins and passwords to their social network site profiles such as Facebook as part of employment background checks? The answer to this question may involve the next frontier of online privacy, suggests the American Civil Liberties Union (ACLU), after the Maryland Department of Corrections (DOC) asked a job candidate for his Facebook login information as part of a background check. Continue reading

Employment Screening Resources President Lester Rosen Discusses Challenges of Social Media Background Checks

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

In an exclusive interview on the top background screening trends of 2011, Employment Screening Resources (ESR) President and safe hiring expert Lester Rosen discusses the challenges of social media background checks, the importance of credit reports in screening, and how organizations can perform background screening more effectively. To learn more, visit http://www.bankinfosecurity.com/podcasts.php?podcastID=951.

While there is no hotter trend in background screening currently than social media, just as social networks can be used to background screen applicants, they also can be abused. As part of Bank Information Security Podcasts for BankInfoSecurity.com on the Insights on the Hottest Trends in Background Screening, Rosen talked to Editorial Director Tom Field on subject matter titled ‘Beware of Social Media for Background Screening.’

“Employers are using social media to not only look at people initially, bit for ongoing screening as well for current employees,” says Lester Rosen, who founded Employment Screening Resources (ESR), a San Francisco-area background screening firm accredited by The National Association of Professional Background Screeners (NAPBS), in 1996.

However, this hot new trend – using social media like blogs, Facebook, and Twitter for background checks – comes with a caveat: Is it too much information? “Through social media, for the first time perhaps in human history, employers are able to literally look inside someone’s head. It’s a real treasure trove of information,” Rosen says. “You’re going to learn all sorts of things as an employer that you don’t want to know and legally can not be the basis of a decision.”

Social media background checks are just one of the hottest background screening trends employers should study. In the interview, Rosen discusses the Employment Screening Resources 4th Annual ‘Top Ten Trends in Background Screening’ for 2011, including:

  • Challenges of social media background checks;
  • The importance of credit reports in background checks; and
  • How organizations can background screen more effectively.

Rosen, a retired attorney, is a consultant, writer, and frequent presenter nationwide on pre-employment screening and safe hiring issues. He is the author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace’ and is also the key presenter in a Bank Information Security Webinar ‘Avoid Negligent Hiring – Best Practices and Legal Compliance in Background Checks.’ To learn more, visit http://www.bankinfosecurity.com/onDemand.php?webinarID=87.

Employment Screening Resources ‘Top Ten Trends in Background Screening’ for 2011 is at http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen and is accredited by The National Association of Professional Background Screeners (NAPBS®) . To learn more about Employment Screening Resources, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Source:
http://www.bankinfosecurity.com/podcasts.php?podcastID=951

Employers Firing Employees over Information Found on Popular Social Media Sites Face Legal Risks

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

A recent article on the Wall Street Journal (WSJ) website ‘Employers Tread a Minefield’ – warns employers about “tripping over legal potholes in social media” if they choose to fire people over alleged social media infractions as more employees and job applicants access popular social networking sites such as Facebook and Twitter.

While job seekers and employees have been warned that what they post on popular social network sites such as Facebook and Twitter during their private time could come back to haunt their public careers, employers are now increasingly facing questions about their own policies regarding social media usage that outlines what is, and what is not, appropriate.

Due to the fact that these social network sites are a virtual treasure trove of personal information about employees and job applicants, the WSJ article cautions employers about the potential for litigation over social media use of employees, citing several legal cases as examples.

  • A National Labor Relations Board (NLRB) judge – in the federal agency’s first ‘social media complaint’ – will soon consider whether a medical transportation company illegally fired a worker in Connecticut after she criticized her boss on Facebook (UPDATE: Connecticut Facebook Firing Settlement Talks in Works).
  • Workers in New Jersey sued a restaurant company when they were dismissed after managers accessed a private Myspace page the employees set up to chat about work.
  • A Silicon Valley company was sued twice for comments an anonymous blogger (who was also an attorney for the company at the time) made about two lawyers and their patent-infringement suit against the company.
  • A former Georgia high school teacher has sued the local school district claiming that she was forced to resign her position over photos on Facebook that showed her drinking alcohol during a vacation in Europe.

While information about job applicants and employees found on social media may seem tempting to employers, viewing such information could lead to issues of discrimination, privacy, and authenticity and accuracy if a person is a victim of “cyber slamming.”

Yet, despite these dangers, employers seem intent on using social media for screening. A 2009 survey of more than 2,600 hiring managers conducted by leading job networking site CareerBuilder.com found nearly half of employers – 45 percent – used social networking sites to research candidates. The survey also revealed that 35 percent of employers rejected job 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.

Experts quoted in the WSJ article say the best defense against legal action for employers is to establish a social media policy and train employees about the policy, something that experts estimate that fewer than half of U.S. companies have done. In the meantime, the amount of legal action resulting from employer missteps in social media is likely to rise.

The issue of using social network sites such as Facebook to screen job candidates increasing the legal risk for employers was the Number 6 Background Screening Trend for 2011 for 2011. For a complete list of the Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011, visit http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

In addition, Lester Rosen, safe hiring expert and founder and President of Employment Screening Resources (ESR),  a background check company accredited by The National Association of Professional Background Screeners (NAPBS), recently participated in a podcast on BackInfoSecurity.com, ‘Background Checks: Beware Social Media,’ and talked about how employers use, and sometimes abuse, social media for background checks. For more information, visit http://www.bankinfosecurity.com/podcasts.php?podcastID=951.

Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen and is accredited by The National Association of Professional Background Screeners (NAPBS®) . To learn more about Employment Screening Resources, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Source:
http://online.wsj.com/article/SB10001424052748703954004576089850685724570.html
http://thehiringsite.careerbuilder.com/2009/08/20/nearly-half-of-employers-use-social-networking-sites-to-screen-job-candidates/

Controversial and Discriminatory Use of Job Applicant Credit Reports by Employers Tops Background Screening Trends List for 2011

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

For the past four years, Employment Screening Resources (ESR) – a leading background check provider to employers accredited by the National Association of Professional Background Screeners (NAPBS®) – has compiled a “Top Ten Trends in Background Screening” list of emerging and influential trends in employment background screening predicted by ESR founder and President Lester Rosen, an Attorney at Law and author of ‘The Safe Hiring Manual,’ the first comprehensive guide for background screening.

For the Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011, Rosen chose the controversial, and potentially discriminatory, practice of employers checking credit reports of job applicants as the number one background screening trend for the year ahead. Articles detailing the top background screening trends for 2011 were published on ESR News starting in December 2010. Below is a list of the background screening trends with a brief summary and links to the full article:

A great deal of misinformation about the basics of credit reports, background checks, and job hunting exists in the current economic climate. The topic has been in the news and states have passed laws or are considering laws to restrict the use of credit reports and employment. Furthermore, the U.S. Equal Employment Opportunity Commission (EEOC) is looking closely at this area and has filed lawsuits alleging discriminatory use.

Most employers are not using credit reports to find ways to eliminate people from jobs. A background check that includes a credit report is usually run only after an employer has gone through the time, cost, and effort to find the right candidate. Employers initiate background checks because they are interested in hiring the applicant and are conducting due diligence to make sure there is no reason not to hire. Under the rules of the federal Fair Credit Reporting Act (FCRA), a credit report is only obtained after the applicant has given consent and after a legally required disclosure has been given. If the employer utilizes the credit report in any way not to hire, applicants are entitled to a copy of their credit report, a pre-adverse action notice, as well as a statement of their rights. Before any employment decision becomes final, applicants also have the right to challenge the credit report before any denial of employment is made final.

However, employers should approach credit reports with caution when using them for employment background checks, and must articulate a clear rationale as to why a credit report is related to a particular job. Employers should also be aware of the potential for errors in credit reports. A debt may be reported incorrectly for various reasons or the applicant could be the victim of identify theft which can also lead to incorrect data. In addition, negative entries may well not be a valid predictor of job performance especially since many job applicants have faced a long period of unemployment that may lead to larger debts.  An overly broad use of credit reports by employers could lead to claims of discrimination from a disparate impact on protected groups such as Blacks and Latinos. The idea that credit reports can be used in a discriminatory manner in the eyes of the EEOC means employers will continue to face controversy with discrimination over using credit reports for employment screening.

To read the full article on Trend #1, please visit: http://www.esrcheck.com/wordpress/2011/01/11/controversy-over-whether-employers-using-credit-reports-for-employment-screening-is-discriminatory-increases/.

Employers have become increasingly aware of the importance of knowing if a job applicant has a criminal record since they have a legal duty to make reasonable inquiries about who they hire in order to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring if the hiring decision results in harm and could have been avoided by a simple criminal record check. Checking criminal records demonstrates due diligence and is also an important preventative measure to protect against workplace violence. One of the most effective tools an employer has is the use of an employment application form in the hiring process which enables employers to directly ask applicants if they have a criminal record. The advantage is that an employer can use a well worded application form to discourage applicants with something to hide while also encouraging applicants to be open and honest regarding questions about past criminal convictions.

However, the issue of whether employers can use a job application to ask about a job applicant’s criminal record is becoming more complicated. Many states, counties, and local governments have joined the “ban the box” movement removing the “box” job applicants are asked to check next to the question asking about past criminal convictions. In addition, more employers are facing lawsuits accusing them of violating Title VII of the Civil Rights Act of 1964 by rejecting or firing qualified individuals with criminal records even when the criminal history has no bearing on the ability to perform their job. Due to these factors, questions about criminal records of job applicants are becoming much more difficult for employers to ask.

To read the full article on Trend #2, please visit: http://www.esrcheck.com/wordpress/2011/01/06/questions-about-criminal-records-of-job-applicants-become-more-difficult-for-employers-to-ask/.

According to an age old platitude, “If something looks too good to be true, it probably is,” so employers should be wary of fast and cheap online criminal background checks that promise accurate and legal information on job applicants at the click of a mouse or the touch of a screen. The need for accurate and reliable information should be obvious to anyone dealing with background checks. Even so, numerous internet sites have sprung up recently promising cheap, almost instant background checks that deliver criminal information to anyone, anywhere, and in seconds. These sites utilize a so-called “national criminal database” and vendors of such databases typically claim to have compiled millions of records from every state so users can know instantly if someone is a criminal at a very low price.

Although a multi-state records database can be a powerful tool when used by a qualified employment screening firm as part of an overall background check, employers who think they are getting a real criminal background check can be in for a rude awaking when they discover that such searches are far from the real thing. Applicants with criminal records can easily be missed, while people without records can be incorrectly identified as criminals. Both results carry negative financial and legal implications for employers. Employers using these databases for employment purposes need to understand the limitations and legal exposure associated with using them or risk finding themselves embroiled in litigation. Employers are quickly discovering that fast and cheap online background checks using criminal databases not always accurate or legal.

To read the full article on Trend #3, please visit: http://www.esrcheck.com/wordpress/2011/01/03/employers-discover-fast-and-cheap-online-background-checks-using-criminal-databases-not-always-accurate-or-legal/.

Many employers do not realize they potentially face the same exposure from vendors, independent contractors, and temporary employees from staffing firms as they do from their own full-time employees when it comes to negligent hiring lawsuits. Risk management controls of employers often do not take into account the “need to know” through background checks of workers who are not on their payroll but are on their premises, with access to computer systems, clients, co-workers, assets, and the general public. The law is absolutely clear that if a vendor, independent contractor, or temporary worker harms a member of the public or a co-worker, the employer can be just as liable as if the person were on the employer’s full-time payroll. All of the rules of due diligence – which include background checks – apply with equal force to vendors, temporary workers, or independent contractors. A business can be liable if, in the exercise of reasonable care, the business should have known that a vendor, temporary worker, or independent contractor was dangerous, unqualified, or otherwise unfit for employment. An employer has an absolute obligation to exercise due diligence not only in whom they hire on payroll, but in whom they allow on premises to perform work. Employers can also be held liable under the legal doctrine of “co-employment,” which means that even though the worker is on someone else’s payroll, the business that uses and supervisees the worker can still be held liable for any misconduct.

However, many employers have found out the hard way that workers from a vendor or staffing firm or hired as an independent contractor without proper background checks can also cause damage. When an employer is the victim of theft, embezzlement, or resume fraud, the harm is just as bad regardless of whether the worker is on their payroll or someone else’s payroll. No employer would dream of walking down the street and handing the keys to the business to a total stranger, yet many employers across America essentially do exactly that everyday when engaging the services of vendors and temporary workers with proper background checks. So-called “temporary” workers can cause permanent problems for employers without the background checks that are performed on full-time employees. As hiring of temporary workers increases – and since the hiring of temporary workers is usually an indication of hiring full-time workers in the future – employers will become increasingly more concerned with background checks of temporary workers in the coming year.

To read the full article on Trend #4, please visit: http://www.esrcheck.com/wordpress/2010/12/28/background-checks-of-temporary-workers-cause-for-concern-for-employers-as-hiring-increases/

In 2011, due to the mobility of workers across international borders in a global economy making it no longer adequate to conduct background screening checks just in the United States, a major trend will be the necessity of international background screening since an increasing number of workers will have spent part of their professional careers abroad. Employers in the U.S. have long recognized that conducting due diligence on new hires with background screening is a mission critical task that can help them avoid being the subject of negligent hiring lawsuits if they hire someone that they should have known – through the exercise of due diligence – was dangerous, unfit or unqualified.

However, with the increased mobility of workers across international borders it is no longer adequate to conduct these background screening checks just in the United States. Background screening also must be done internationally since an increasing number of workers have spent part of their professional careers abroad. The number of foreign countries from which U.S. employers may seek information about applicants with international background screening is expansive, and includes Australia, Brazil, Canada, Chile, China, France, Germany, India, Ireland, Israel, Japan, Malaysia, Mexico, Nigeria, Pakistan, Philippines, Russia, Singapore, South Africa, and the United Kingdom (U.K.).

To read the full article on Trend #5, please visit: http://www.esrcheck.com/wordpress/2010/12/23/international-background-screening-more-necessary-due-to-mobility-of-workers-in-global-economy/.  

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.

To read the full article on Trend #6, please visit: http://www.esrcheck.com/wordpress/2010/12/21/esr-background-screening-trend-6-for-2011-using-social-network-sites-such-as-facebook-to-screen-job-candidates-increases-legal-risk-for-employers/.   

A background screening trend that gained much attention in 2010 that will continue to do so in 2011 will be increased workplace violence prevention education to help protect both employers and employees. While the term “workplace violence” is appropriate for a quick definition or diagnosis of a problem, fully defining all aspects of “workplace violence” can be nebulous at best. Many employers loosely define workplace violence as: Assaults, other violent acts, or threats which occur in or are related to the workplace and entail a substantial risk of physical or emotional harm to individuals, or damage to company resources or capabilities. The Occupational Health and Safety Administration (OHSA) defines “workplace violence” as “violence or the threat of violence against workers” that involves any physical assault, threatening behavior, or verbal abuse occurring in, or related to, the workplace, and includes behaviors ranging in aggressiveness from verbal harassment to murder. According to the U.S. Bureau of Labor Statistics (BLS), there were 521 workplace killings in the United States in 2009, 420 of them committed by gunfire.

To read the full article on Trend #7, please visit: http://www.esrcheck.com/wordpress/2010/12/16/esr-background-screening-trend-7-for-2011-more-workplace-violence-prevention-education-helps-protect-employers-and-employees/.

A new background screening trend emerging in 2011 will be the increased concern over the “offshoring” of Personally Identifiable Information (PII) of U.S. consumers. A recently signed California law appears to be the first in the United States to regulate the “offshoring” of Personally Identifiable Information (PII) of U.S. consumers collected for background checks, a controversial practice where private data of U.S. citizens – such as names, dates of birth, addresses, and Social Security numbers (SSNs) – is sent overseas, outside the United States and its territories, and beyond the reach of U.S. privacy laws. In September 2010, Governor Arnold Schwarzenegger signed into law California Senate Bill 909 (SB 909), which addresses the issue of personal information being sent offshore. SB 909 – which takes effect January 1, 2012 to allow time for background check firms to provide new releases to employers or modify online language – amends the California Investigative Consumer Reporting Agencies Act (ICRA) that regulates background checks in California and requires that a consumer must be notified as part of a disclosure before the background check of the web address for “information about the investigative reporting agency’s privacy practices, including whether the consumer’s personal information will be sent outside the United States or its territories.”

To read the full article on Trend #8, please visit: http://www.esrcheck.com/wordpress/2010/12/14/esr-background-screening-trend-8-for-2011-increased-privacy-concerns-over-offshoring-of-personally-identifiable-information-pii/.

An October 2010 press release from the Department of Homeland Security (DHS) announced record-breaking immigration enforcement statistics achieved under the Obama administration, which included issuing more financial sanctions on employers who hired unauthorized workers than during the entire previous Bush administration. Since January 2009, when President Barack Obama took office, U.S. Immigration and Customs Enforcement (ICE) – the principal investigative arm of DHS – has audited more than 3,200 employers suspected of hiring workers not legally eligible to work in the U.S., debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions, according to the DHS. A summary of fines and penalties from ICE reveals that this surge in enforcement of a legal U.S. workforce included a 500 percent increase in penalties from worksite enforcement actions (over $5 million), a nearly two-fold increase in I-9 audits (2,200), a record-breaking 180 criminal prosecutions of employers, and the debarring of more than 97 businesses, compared to 30 last fiscal year, with average fines exceeding $110,000. Due in large part to increased scrutiny on employers from ICE through I-9 audits – where employee information on Employment Eligibility Verification Forms (“I-9 forms”) is checked for accuracy by Government agents – penalties from worksite enforcement inspections have increased recently.

To read the full article on Trend #9, please visit: http://www.esrcheck.com/wordpress/2010/12/09/esr-background-screening-trend-9-for-2011-e-verify-and-i-9-audits-help-government-find-employers-with-illegal-workers/.

Before this year, employers were largely on their own when selecting a background screening firm. With hundreds upon hundreds of background screening firms to choose from, employers faced a bewildering landscape of competing claims that touted any number of bells and whistles that made it hard to distinguish one background screening provider form another. Some background screening firms had ISO (International Organization for Standardization) certification, but as noted in the article “Backgrounds to the Foreground” in the December 2010 issue of HR Magazine, the ISO designation is not specific to background screening and does not guarantee quality of products or services. Employers were also faced with “commercial” rankings published by private “for-profit” publications, which only added to the confusion. The problem for employers is that background screening is a critical function subject to intense legal regulation, and so the stakes are high. In 2010, the National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) took significant steps towards solving this perplexing problem with the creation of the Background Screening Agency Accreditation Program (BSAAP) that covers all areas related to the background screening process and, most important, is professional and objective and not based upon any commercial considerations. The BSAAP advances professionalism in the background screening industry through the promotion of best practices, awareness of legal compliance, and development of standards that protect consumers.

To read the full article on Trend #10, please visit: http://www.esrcheck.com/wordpress/2010/12/06/employment-screening-resources-top-ten-trends-in-background-screening-for-2011-no-10-new-accreditation-standards-help-employers-select-background-screening-firms/.

The Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011 is available at: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

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

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Employment Screening Resources (ESR) President Lester Rosen to Speak on Risks of Using Social Networking Sites like Facebook for Background Checks

By Thomas Ahearn, Employment Screening Resources (ESR) News Editor

Lester Rosen, founder and President of Employment Screening Resources (ESR), a leading provider of background checks accredited by the National Association of Professional Background Screeners (NAPBS®), will speak about ‘The Risks of Using Social Networking for Employment Background Screening’ at the January monthly meeting for the Northern California Association of Health Care Recruiters (NCAHCR). The presentation, part of the ‘ESR Speaks’ background check speaking and training program, will take place on Wednesday, January 5, 2011 in Fremont, California.

Mr. Rosen – an Attorney at Law and author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace’ – will explore the legal risks of using popular social networking sites like Facebook for background screening of job candidates. He is a recognized background check expert and frequent speaker nationwide on issues surrounding employment screening. Rosen was also the chairperson of the steering committee that founded NAPBS and also served as the first co-chairman.

For more information about ‘The Risks of Using Social Networking for Employment Background Screening,’ visit the ‘ESR Speaks’ page at http://www.esrcheck.com/Newsletter/ESR-Speaks/. For a summary of ‘ESR Speaks’ events for 2011, visit http://www.esrcheck.com/ESR_Speaks2011.php. Check back regularly for updates.

The Northern California Association of Health Care Recruiters (NCAHCR) promotes professional principles of health care recruitment and provides education for health care recruiters, hospital administration, and the community regarding recruiting, employment, and retention of health care personnel. To learn more, visit http://www.norcalahcr.org/.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

ESR Background Screening Trend 6 for 2011: Using Social Network Sites Such as Facebook to Screen Job Candidates Increases Legal Risk for Employers

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011

Trend No. 6: Using Social Network Sites Such as Facebook to Screen Job Candidates Increases Legal Risk for Employers

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 and recruiters have discovered a treasure trove of information on potential job applicants in social networking sites such as MySpace, Facebook, LinkedIn, Twitter, and other online sources,” says Lester Rosen, founder of Employment Screening Resources (ESR) and author of The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace,’ the first comprehensive book on employment screening. “However, the use of these sites can present legal risks, including privacy and discrimination issues.”

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?

Another problem concerning Internet sourcing and screening yet to be fully explored by the courts is the issue of privacy. Contrary to popular opinion, everything online is not necessarily fair game. Certainly, people choosing not to adjust their privacy settings so that their social network sites are easily available on Internet searches 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 their 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 front door to the house they stole from was unlocked so they felt they could just walk in.
 
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.

On the other hand, failure to utilize these social networking sites when a search could have revealed relevant information could expose an employer to claims of negligent hiring. 

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.

To read more ESR News articles about using social network sites for screening, visit http://www.esrcheck.com/wordpress/tag/social-networking-sites/.  Learn more about Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Employment Screening Resources (ESR) – a leading provider of background checks accredited by The National Association of Professional Background Screeners (NAPBS®) – is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Sixth of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be Safe Harbor’ Certified for data privacy protection. To learn more, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Senator Sends Letters to Social Networking Sites Facebook and MySpace after Wall Street Journal Reports Privacy Breach

By Thomas Ahearn, ESR News Blog

Senator John D. (Jay) Rockefeller IV, Chairman of the U.S. Senate Committee on Commerce, Science, and Transportation, has sent letters to the heads of two popular social networking sites – Facebook CEO Mark Zuckerberg and MySpace President Michael Jones – requesting more information about privacy breaches recently reported in the Wall Street Journal (WSJ), according to a press release from the Senator that includes the text of both letters.

Senator Rockefeller states in both letters that he is troubled by a recent Wall Street Journal investigation report that revealed the practice of Facebook, MySpace, and affiliated applications (or “apps”) transferring user IDs and user personal information to marketing firms, tracking companies, and third-party advertisers without their knowledge. As reported by the WSJ:

  • Third-party applications have transferred Facebook users’ personal information to marketing firms, data brokers and tracking companies. This violates Facebook’s explicitly stated privacy policy.
  • MySpace has shared user IDs with third-party advertisers. This has happened after users clicked on advertisements or accessed affiliated third-party applications.

Senator Rockefeller is quoted in the press release saying that these reports “raise serious questions about social networking sites’ commitment to enforcing their own privacy policies on behalf of consumers” and that, as Chairman of the Senate Commerce Committee, he intends to “find out whether today’s social networking sites are adequately protecting their users’ personal information.”

In the letter to Facebook CEO Mark Zuckerberg, Senator Rockefeller requests answers – with specificity – to the following questions:

  • 1) How does Facebook enforce its Privacy Policy relating to affiliated application operators and websites? What logistical protocols are in place to promote maximum compliance? What resources, including the number of personnel, does Facebook dedicate to monitoring and enforcing application operators’ compliance with its Privacy Policy?
  • 2) What penalties does Facebook impose on application operators and websites that violate the company’s Privacy Policy? Are offending application operators allowed to continue to do business with Facebook?
  • 3) Does Facebook take steps to retrieve information from application operators found in violation of the company’s Privacy Policy?
  • 4) The Journal article quotes a Facebook official that asserts the company has “taken steps… to significantly limit RapLeaf’s ability to use any Facebook-related data.” What exactly does this mean?
  • 5) According to the Journal article, there appears to be a pattern of privacy infractions involving Facebook applications. Specifically, what other past problems has Facebook encountered with regard to applications, and what steps did Facebook take to rectify them? Are these applications still available on Facebook’s platform?
  • 6) To the extent that personal data has been shared in violation of Facebook’s Privacy Policy, what steps has Facebook taken to notify individual users as to the specific information that has been mishandled, and who has had access to that information?

In the letter to MySpace President Michael Jones, Senator Rockefeller requests answers – again, with specificity – to the following questions:

  • 1) Why does MySpace’s Privacy Policy place the responsibility on Members to control their personal information when interacting with affiliated apps and advertisers, when other social networking sites have more restrictive policies that better protect consumer privacy?
  • 2) Why does MySpace’s Privacy Policy assert that the company “does not control” and “cannot dictate” the actions of third-party applications on how they retrieve and use Members’ information when other social networking sites impose limits on the use of such information?
  • 3) The definition of PII is very narrow and does not capture a range of consumer information – such as user IDs – that could be used to identify MySpace Members. Please explain the rationale behind this narrow definition of PII and how it differs from personal information that is considered non-PII.
  • 4) How does MySpace reconcile the explicit terms of its own Privacy Policy with the Journal’s report that the company “had pledged to discontinue the practice of sending personal data” to ad networks and similarly prohibited third-party application operators from doing so?
  • 5) If MySpace has publicly pledged to prohibit such information transfers, how has this prohibition been enforced and what plans does MySpace have in place to effectively enforce its policy in the future?

The protection of Personally Identifiable Information (PII) of individuals – such as names, birthdates, addresses, identification such as Social Security Numbers (SSN) and driver’s licenses, and financial data – should be reflected in the Privacy Policy of every company.

Employment Screening Resources (ESR) does not re-sell or “offshore” Personally Identifiable Information (PII) of individuals and all domestic background checks are performed exclusively in the United States. Once Personally Identifiable Information is offshored and leaves the U.S., the PII is beyond the reach of U.S. privacy laws. A large number of background screening firms have also taken a position against offshoring Personally Identifiable Information at http://www.concernedcras.com/no_offshoring.htm.

For more information about Employment Screening Resources (ESR), visit http://www.ESRcheck.com.

Employment Screening Resources (ESR) literally wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is recognized as Background Screening Credentialing Council (BSCC) Accredited by the National Association of Professional Background Screeners (NAPBS®) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). For more information about Employment Screening Resources, visit http://www.ESRcheck.com.

Source:
http://commerce.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=c26b5c34-cf19-4d8a-93aa-d9a29b749337

WSJ Investigation Finds Facebook in Privacy Breach with Personally Identifiable Information (PII) of Users

 By Thomas Ahearn, ESR News Blog

A recent Wall Street Journal (WSJ) investigation (see WSJ article ’Facebook in Privacy Breach’) has found many of the most popular “apps” (applications) on the world’s most popular social networking site, Facebook.com, have been transmitting Personally Identifiable Information (PII) of tens of millions of users – such as names and names of friends – to advertising and Internet tracking companies.

After a WSJ investigation showed that personal IDs were being transmitted to third parties via “apps” – pieces of software that let Facebook’s more than 500 million users play games or share common interests with one another – a Facebook spokesman said the social networking site would take steps to “dramatically limit” the exposure of the PII of users. The WSJ found that all of the 10 most popular apps on Facebook were transmitting PII. 

According to the WSJ investigation, the information transmitted – the unique “Facebook ID” number assigned to every user on the site –is a public part of any Facebook profile that anyone can use to look up names of users even if they have set their Facebook information to be private. For those profiles set to share information with “everyone,” the Facebook ID reveals data including age, residence, job occupation, and photos.

As defined on Wikipedia.com, “Personally Identifiable Information (PII), as used in information security, refers to information that can be used to uniquely identify, contact, or locate a single person or can be used with other sources to uniquely identify a single individual. The abbreviation PII is widely accepted, but the phrase it abbreviates has four common variants based on personal, personally, identifiable, and identifying. Not all are equivalent, and for legal purposes the effective definitions vary depending on the jurisdiction and the purposes for which the term is being used.”

In addition, Personally Identifiable Information “has become much more important as information technology and the Internet have made it easier to collect PII, leading to a profitable market in collecting and reselling PII. PII can also be exploited by criminals to stalk or steal the identity of a person, or to plan a person’s murder or robbery, among other crimes. As a response to these threats, many web site privacy policies specifically address the collection of PII, and lawmakers have enacted a series of legislation to limit the distribution and accessibility of PII.”

According to Wikipedia, the following are often used for the express purpose of distinguishing individual identity, and thus are clearly PII under the definition used by the U.S. Office of Management and Budget:

  • Full name (if not common)
  • National identification number
  • IP address (in some cases)
  • Vehicle registration plate
  • Driver’s license number
  • Face, fingerprints, or handwriting
  • Credit card number
  • Digital identity
  • Birthday
  • Birthplace
  • Genetic information

The following are less often used to distinguish individual identity, because they are traits shared by many people. However, they are potentially PII, because they may be combined with other personal information to identify an individual.

  • First or last name, if common
  • Country, state, or city of residence
  • Age, especially if non-specific
  • Gender or race
  • Name of the school they attend or workplace
  • Grades, salary, or job position
  • Criminal record

For more information about PII, please visit Employment Screening Resources (ESR) News Blog for posts tagged ‘personally identifiable information’ at: http://www.ESRcheck.com/wordpress/tag/personally-identifiable-information/

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

Sources:

http://online.wsj.com/article/SB10001424052702304772804575558484075236968.html

http://en.wikipedia.org/wiki/Personally_identifiable_information

Some Employers Rejecting Job Applicants Outright Because of Online Images Found in Social Networking Background Checks

By Thomas Ahearn, ESR News Blog Writer

Could what job applicants post on social networking sites like LinkedIn, Facebook, and Twitter affect their chances of finding employment?

A recent story on HuffingingtonPost.com – Rejected Outright for the Job Because of Their Online Image – details how a business strategist was helping a client with some key hires by searching for and identifying potential candidates on the business social network LinkedIn. The strategist’s client then “Googled” – i.e. checked on popular search engine giant Google.com – each candidate’s name on the short list to do a quick online background check.

According to the story, the job candidates were split into two categories, those people with a “positive web presence” and those people without one. Those with positive presences were interviewed for jobs while the others were rejected outright because of content they had on other social networking sites like Facebook, Twitter, or blogs they may have written.  As a result, the business strategist suggests job applicants look at their “personal brand” online to “make sure it matches who they are and how they want to be perceived.”

However, employers who conduct “social networking background checks” on sites like LinkedIn, Facebook, and Twitter should also be aware that doing so could possibly lead to problems, according to safe hiring expert, Lester Rosen, founder of San Francisco-area based Employment Screening Resources (ESR).

“Employers and recruiters have discovered a treasure trove of information on potential job applicants in social networking sites such as MySpace, Facebook, LinkedIn, Twitter, and other online sources,” says Rosen, author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace,” the first comprehensive book on employment screening. “However, the use of these sites can present legal risks, including privacy and discrimination issues.”

To help educate employers on the potential legal risks of “social networking background checks,” Rosen will present an online webinar – “Legal Risks of Social Network Sites and Employee Screening” – with the Northern California HR Association (NCHRA) on Friday, September 10, 2010 from 11:00 am to 12:30 pm Pacific Time. The webinar is free to NCHRA members. To register, visit http://www.nchra.org/scriptcontent/custom/e-index.cfm?PAGE=WB100111.htm&ion=events.

For more information on “all things background checks,” visit http://www.ESRcheck.com.

Source:
http://www.huffingtonpost.com/fred-whelan-and-gladys-stone/rejected-outright-for-the_b_700856.html

Germany Proposes Law Restricting Employers from Using Facebook when Recruiting

By Thomas Ahearn, ESR News Blog Writer

According to a recent article in the NY Times, the German government has proposed placing restrictions on employers who wish to view the profiles of job applicants on wildly popular social networking sites such as Facebook when recruiting.

The Times reports that the proposal to limit the use of Facebook for recruiting – part of a proposed law governing workplace privacy – would allow recruiters to search publicly accessible information about applicants on the Web and view applicant pages on job sites such like LinkedIn but not search on “purely” social networking sites like Facebook.

The German bill limiting the use of Facebook – which claims over 500 million users worldwide and about 10 million in Germany – could pass this year, the Times reports.

A law like the one proposed in Germany blocking employers from checking the social profiles of job applicants on Facebook would mean big changes in America, since recruiters routinely use social-networking sites to find out more about applicants. A 2009 survey from job networking site CareerBuilder.com found 45 percent of employers used social networking sites to research candidates and 35 percent rejected applicants based on what was uncovered.

Of the 35 percent of employers who found content causing them not to hire the candidate:

  • 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 

However, social networks should not be seen by employers as some sort of “cheap-and-easy” background check, according to Les Rosen, President of Employment Screening Resources (ESR), a leading provider of background checks for employers and recruiters.

“Employers and recruiters have discovered a treasure trove of information on potential job applicants in social networking sites such as Facebook and LinkedIn,” says Rosen, a frequent speaker on employment screening issues and the author of “The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Imposters and Terrorists out of the Workplace,” the first comprehensive guide on employment screening for employers. “However, the use of these social media sites can present legal risks, including privacy and discrimination issues. We show employers how to avoid these legal landmines.”

ESR will present a webinar featuring Rosen to educate employers and recruiters on the proper use of popular social media such as Facebook and LinkedIn during background checks. The webinar – “Avoiding Legal Landmines when Using Facebook, LinkedIn, and Other Social Media Websites for Screening Candidates” – will be presented on Thursday, August 26, 2010 from 2:00pm to 3:30pm ET (11:00am to 12:30pm PT). For more information, visit: http://www.esrcheck.com/ESR_Speaks/Background-Screening-Checks-and-Facebook-and-MySpaceLegal-Limitations-and-Issues-63/.

Questions that will be answered in this informative and educational webinar include:

  • Why do major employers, human resources, and recruiters use search engines and social network sites to screen candidates?
  • What are the risks in using these social network sites?
  • Isn’t everything on the web fair game since privacy is waived once someone places something on the Internet?
  • How do discrimination laws and rules concerning off-duty conduct apply?
  • What are the best practices for employers when using social network sites?

For more information about Employment Screening Resources (ESR), visit: http://www.ESRcheck.com.

Sources:
http://www.nytimes.com/2010/08/26/business/global/26fbook.html/
http://thehiringsite.careerbuilder.com/2009/08/20/nearly-half-of-employers-use-social-networking-sites-to-screen-job-candidates/
http://www.esrcheck.com/SafeHiringManual.php
http://www.esrcheck.com/ESR_Speaks/Background-Screening-Checks-and-Facebook-and-MySpaceLegal-Limitations-and-Issues-63/
http://www.esrcheck.com/wordpress/2010/08/20/esr-webinar-shows-how-to-avoid-legal-landmines-if-using-social-media-like-facebook-and-linkedin-for-employment-screening/