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
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.
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:
- 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:
- 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?
In the letter to MySpace President Michael Jones, Senator Rockefeller requests answers – again, with specificity – to the following questions:
- 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.
- 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?
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.
By Les Rosen, Employment Screening Resources
Lester Rosen, President of Employment Screening Resources (ESR), a leading international employment screening background check firm headquartered in the San Francisco area, will present a national webinar for a leading business information site on employment screening on Thursday, April 22, 2010 at 2:00 PM EST / 11:00 AM PST.
The webinar — How Social Media and Traditional Background Checks Trigger Privacy Lawsuits — is being presented by Business 21 Publishing, which provides multi-media corporate learning and employee training products. Participants in this 60-minute webinar will learn best practices to help screen employees thoroughly without violating the law.
In the webinar, Rosen — a nationally recognized expert on employment screening background checks — will address such topics as:
- The pros and cons of using social media internet sites such as Facebook, MySpace, and TwitterÂ and how privacy and discrimination laws apply.
- What employers should do when they discover that a job candidate has a criminal record, a bad credit report or some other red flag.
- The Title VII implications of background checks and credit reports.
- The legal requirements under the Fair Credit Reporting Act (FCRA) and how state to state privacy laws also apply.
- The legal risks associated with “one button” automated background check systems.
- What applicants need to sign before and after the background check is complete.
- How employers should deal with independent contractors or temporary workers.
- Considerations when conducting International background checks.
“Hiring safe, qualified, and honest employees is mission critical for any business, and I am pleased to have the opportunity to help employers avoid the risks of a bad hire,” commented Rosen. “Recruiters and hiring managers also need to understand the potential liabilities that employers can face if employment screening is done incorrectly or unfairly as well.”
Mr. Rosen, who is also an attorney, is a writer and speaker on the Fair Credit Reporting Act (FCRA), pre-employment screening, and safe hiring issues. In addition, he is the author of the first comprehensive book on employment screening — “The Safe Hiring Manual: The Complete Guide to Keeping Criminals, Imposters, and Terrorists Out of Your Workplace” — and also wrote an additional guide on the subject called “The Safe Hiring Audit.”
Mr. Rosen’s speaking appearances have included numerous national and statewide conferences. He has testified in the California, Florida, and Arkansas Superior Court as an expert witness on issues surrounding safe hiring and due diligence. Mr. Rosen was also the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS), the professional trade organization for the screening industry, and served as the first co-chairman in 2004.
For more information about the webinar How Social Media and Traditional Background Checks Trigger Privacy Lawsuits, please visit: http://www.b21pubs.com/p-892-how-social-media-and-traditional-background-checks-trigger-privacy-lawsuits.aspx. More information about Employment Screening Resources (ESR) can be found at www.ESRcheck.com.
By Les Rosen, Employment Screening Resources
2010 Trends in Screening — Trend Five: Lawsuits for Use of Social Networking Sites for Background Checks
In past posts, Employment Screening Resources (ESR) has labeled the use of the internet and social networking sites as a hot topic. In 2010 and onwards, it appears very likely that litigation over the use of these sites will be the hot topic.
As ESR has described in past articles, discrimination rules apply equally to recruiters. And firms that use social network sites in a discriminatory fashion could find themselves in hot water if a recruiter spills the beans, or the recruiting practices results in a workforce that is statistically imbalanced. See: http://www.esrcheck.com/wordpress/775/the-rush-to-source-candidates-from-internet-and-social-networking-sites-2
Stay tuned to the ESR blog for updated information.
(Employment Screening Resources (ESR), a leading national online employment screening background firm, is releasing the “Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry” for 2010. This is the FIFTH of the ten trends ESR will be tracking in 2010.)
Guest blog: ESR invites partners to provide guest blogs. The following is an articles on Social Medial Policy Tips:
As Facebook, MySpace, LinkedIn, Twitter, YouTube and other such sites become more ingrained in our daily lives and habits, employers are scrambling to incorporate guidelines for responsible social media use into company policy manuals. But do all employers need a social media policy? Probably.
Your employees are already tweeting and posting comments, pictures and video. It’s up to you to outline how (or if) you want them to reference your company in such settings. Understanding that you may want to give employees some flexibility to use social media, you should at least consider some guidelines that protect your company.
Here are some dos and dont’s employers should consider when thinking about establishing social media policy.
DO: Create a social media policy that fits with your industry, philosophy and needs. Determine if your company can benefit from using social media outlets to communicate internally and with customers and/or vendors. Also consider the possible scenarios that could cause harm or damage to your company, customers and employees. This could include employees posting comments that may disparage your company reputation and/or posting negative comments about customers or clients.
DO: Make employees aware that they may be liable for content and information they post on blogs, social media sites and email. Let them know that their postings on public media sites may be monitored by the company and used as grounds for termination if it causes harm to the company, other employees and/or customers or vendors.
DO: Clearly communicate your social media policy to your employees. Include it in your new hire orientation, your employee handbook and, if applicable, your intranet and/or company blog. Have employees sign an “acknowledgement” that they read and received a copy of the policy. Ensure existing employees understand your policy in relation to proprietary and private information. Refer back to your existing confidentiality policy.
DO: Communicate how much time and when employees can access social media with company property or on their personal property during work hours. If you have a more flexible work environment, provide general guidelines (i.e. use the Internet within a reasonable amount of time without it affecting your work). Some companies may want to limit such activity to breaks (or not at all).
DON’T: Make subordinates feel uncomfortable with “friend requests.” Balance this issue carefully to determine how much you want to mix your personal social media information with your business. For example, don’t make employees feel coerced into accepting their boss as a “friend” or “follower.” Some employees may want to keep their personal pages separate from their work identity, while others could perceive favoritism if you connect with some but not others.
DON’T: Let employees post offensive or harassing language, pictures or video that impact or harm your business, customer or employees on public media sites. Employees may not be aware that some of their personal sites are open to the public, including customers, vendors, supervisors and coworkers. Your social media policy should refer to your zero-tolerance harassment policy.
DON”T: Ignore the power of social media. Assign a person or department to monitor blogs and other social media sites to see what people are saying about your company. Respond to customer comments, deal with disparaging remarks and use it to see what others are saying about your competition.
Brenda Gilchrist, SPHR, is principal/cofounder of The HR Matrix, a Santa Rosa-based full-spectrum management firm specializing in human resources, organization development and employee recruitment. Contact her at (707) 526-0877 or email@example.com .
Employment Screening Resources a leading international employment screening background checking firm headquartered in the San Francisco area, announced that its president, Lester Rosen, will be presenting before the prestigious Staffing Management Association (SMA) of Seattle on September 16, 2009.
SMA’s mission is to present practical and relevant information by bringing in top-notch recruiting and retention experts. See: http://www.emaseattle.org/events.shtml
Mr. Rosen will be addressing, Landmines, Pitfalls and Potential Law Suits â€“ Understanding the Risks of Using Search Engines and Social Networking Sites to Screen Candidates.
“am very pleased to have opportunity to discus this cutting edge topic with to-notch staffing professionals in such a critical economic area as Seattle,” commented Rosen. “There is evidence that recruiters and hiring managers are utilizing social network sites to make hiring decisions without taking into account the potential liabilities that employers can face if done incorrectly or unfairly. This talk is geared to starting a dialogue on the potential landmines that may be encountered if not done correctly.”
Mr. Rosen will review a major new survey that demonstrates what percentage of employers use these sites, which sites they use, how often they are used to NOT hire someone, as well as the most frequently seen issues that turn-off employers.
Mr. Rosen, who is also an attorney, is a nationally recognized, expert, on employments screening background checks. He is a writer and speaker on the Fair Credit Reporting Act (FCRA), pre-employment screening, and safe hiring issues. In addition, Mr. Rosen is the author of the first comprehensive book on employment screening, The Safe Hiring Manual Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace,a 500 pages plus guide that acts as the text book for the screening industry. He also wrote, “The Safe Hiring Audit.”
Â Mr. Rosen’s speaking appearances have included numerous national and statewide conferences. He has testified in the California, Florida and Arkansas Superior Court as an expert witness on issues surrounding safe hiring and due diligence. Mr. Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS), the professional trade organization for the screening industry, and served as the first co-chairman in 2004.
More information about Employment Screening Resources can be found at www.ESRcheck.com
The Rush to Source Candidates from Internet and Social Networking Sites — Let’s Slow Down and Think About This for a Minute
What is sometimes overlooked in the rush to use the Internet to recruit is the one question that needs to be asked first: What are the legal risks in using the Internet for recruiting, and how do we manage those risks?
Allegations of discrimination is one critical area where employers and recruiters can find themselves in hot water when utilizing social networking sites such as MySpace and Facebook (sometime shortened to “MyBook”). Recruiters may be accused of disregarding candidates who are members of protected classes by passing over the online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religious affiliation, marital status, or medical condition. All of those are things that may be revealed by a Facebook or MySpace search. There may even be photos showing a physical condition that is protected by the Americans with Disabilities Act (ADA) or showing someone wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as Too Much Information or TMI.
The problem is that once a recruiter is aware that an individual is a member of a protected group, it is difficult to claim that the recruiter can un-ring the bell and forget he or she ever saw it.
It could be argued that if a passive candidate is passed over because of discriminatory criteria revealed on a social network site, how they can be harmed, since they did not even know they were disregarded and are none the wiser. The problem with that approach is three-fold. First, discrimination and civil rights laws would likely still apply, even in recruiting passive candidates. Secondly, there are few secrets in the world. If a firm is using discriminatory criteria, a member of the recruiting team who feels uncomfortable about such a practice may well say something – either publicly on the web, or within the organization. Third, it can be argued that discriminatory criteria were being used if it turns out that the entire workforce happens to be homogeneous and does not include members of protected classes.
Of course, the analysis is complicated by the fact that the aggrieved individual may have placed the information on the web themselves. However, it would be challenging to suggest that a person somehow consented to discrimination by placing material on the web that was then used illegally by recruiters. Until Courts rule on these issues, employers can only try to apply established legal concepts to their online recruiting efforts.
Protection from allegations
The issue for employers and recruiters is how to protect themselves from allegations of discrimination if no further action is taken after the recruiter discovers on the Internet that a person is a member of a protected class. For employers that want to use social network sites to screen a current candidate, the safest path for the use of social network sites is to obtain consent, and only search once there has been a conditional job offer. This helps ensure that impermissible information is not considered before the employer evaluates an applicant using permissible tools, such as interviews, job-related employment tests, references from supervisors, and a background check. At that point, the reason for searching social networking sites would be to ensure that there is nothing that would eliminate the person for employment, such as saying nasty things about your firm, or if the applicant engaged in behavior that would damage the company, hurt business interests, or be inconsistent with business needs.
Different rules apply
For sourcers and recruiters who are looking for passive candidates, however, that approach does not apply. By definition, the recruiter does not have consent, since sourcing is at the start of the hiring process.
Sourcing Stage Considerations
Employers and recruiters in the sourcing stage may want to consider some of the following:
- Ensure each position has a detailed job description written for that specific position that clearly lays out the essential functions of the job and the knowledge, skills and abilities (KSA) required for the position.
- Have a clear internal policy that internet sourcing is NOT being used in violation of federal and state discrimination laws and that only factors that are a valid predictor of job performance will be considered, taking into account the job description and the KSA require for the job.
- Have documented training on legal recruiting techniques. The training should include clear information on what would constitute a discriminatory practice.
- Have a clear procedure that outlines key words, criteria, and methodology for sourcing, so recruiters can demonstrate that they are searching for objective requirements to be considered as part of the pool. Even better is if the criteria being used can be measured or have a metric attached.
- If someone meets the objective requirements but is not placed in the pool of potential candidates for other reasons, a recruiter may want to note why the exception is being made. For example, if the social networking website demonstrated behavior inconsistent with business interests, that should be noted.
Computer twins, cyber slamming, credibility and privacy
Of course, social network sites need to be taken with a grain of salt. Employers need to be careful that the site they are looking at actually refers to the applicant. Many Americans have online computer twins, people with similar names. Another problem is “cyber slamming,” online smearing usually done anonymously, such as derogatory comments on websites or even setting up a fake website that does not truly belong to your applicant. Yet another issue is whether the statements made are even true and credible, keeping in mind that the idea behind these sites is friends talking to friends, and users of these sites have been known to embellish.
Until the courts sort this out, one thing does seem fairly certain if an employer uses subterfuge to gain access, such as by creating a fake online identity just to penetrate a social network site, then the privacy line has probably been crossed.
The bottom-line as always when using the Internet for employment related matters: Proceed With Caution. There has yet to be clear law or court cases that set forth how to proceed in this area. In the meantime, employers and recruiters may want to approach the Internet with some caution before assuming that everything is fair game in the pursuit of passive candidates.
Applicants also need to realize that those photos and writings that seemed funny in college may not play well in the job hunt. Applicants should not be the last to know what will show up on the internet, and if there is something an applicant wants to keep private, then he or she should either delete it or make certain they have adjusted their privacy setting on their favor social networking site to keep out intruders. Better yet, use your social networking site as a job hunting tool, by extolling your qualifications on the web.
For more information, see: www.ESRcheck.com
A new article by Employment Screening Resources President Lester Rosen has appeared in the RecruitingÂ Trends blog, sponsored by Kennedy Information for the purpose of providing leading edge insights and strategies for the recruiting professional.Â The blog offers articles by thought leaders and experts in the area of talent management and recruiting.
The article is titled: â€œThe Rush to Source Candidates from Internet and Social Networking Sites â€“ Letâ€™s Slow Down and Think About This for a Minute.â€
The article examines pitfalls and legal risk in the use of the internet for sourcing and screening.Â See: http://www.recruitingtrends.com/article/ART635215
Mr. Rosen, who is as an attorney at law, is a member of the Editorial Board and frequently presents at Kennedy Information Recruiting Conferences.
According to a story published online by the Christian Science Monitor, the City of Bozeman, Montana has “requested that candidates provide their username and passwords for social networking sites such as Facebook, MySpace, and Twitter. The application asks that candidates “list any and all current personal or business Web sites, web pages, or memberships on any Internet-based chat rooms, social clubs, or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc.” http://features.csmonitor.com/innovation/2009/06/19/montana-job-seekers-asked-for-facebook-myspace-logins/#comment-10827.
Although this is an evolving area of law, the City needs to tread very carefully in this area. First and foremost, they are opening themselves up to discrimination claims if the social network site reveals an applicant’s membership in a protected group, such as race, nationality, ethnicity, religious afflation, marital status, physical condition, etc. This is especially an issue when asking for this information in the application stage where there can be an inference that such factors were used illegally to screen out candidates on the basis of their membership in a protected class. Even assuming that a review of such sites may be relevant to the job, it is best done later in the hiring process, so applicants can be assured they were considered fairly, before the City goes looking at private sites. The City should also formulate clear policies and procedures to ensure they are looking for factors that are valid predictors of job performance.
There are a number of other issues as well to consider. For an examination of some of the reasons the use of social network site can be dangerous, see the following ESR article: http://www.esrcheck.com/articles/Caution-Using-Search-Engines-MySpace-or-Facebook-for-Hiring-Decisions-May-Be-Hazardous-to-Your-Business.php.
Update: According to the latest news information, the City of Boozeman has dropped this requirement due to negative reactions. However, this blog post will remain since this is an ongoing issue.