From social networking sites such as Facebook and Twitter to blogs, YouTube videos, and search engines like Google, many of today’s employers have focused with laser-like intensity on using the plentiful amount of information found online to conduct background checks on job candidates. What is overlooked in the rush to use these sites for employment screening, according to one safe hiring expert, are the legal risks involved with conducting so-called Internet background checks.

These risks include issues with discrimination, credibility, accuracy, and privacy, claims Attorney Lester Rosen, founder and President of Employment Screening Resources (ESR), a background check provider accredited by the National Association of Professional Background Screeners (NAPBS) and headquartered in the San Francisco area.

“Employers have uncovered what appears to be a treasure trove of job applicant information on the Internet,” says Rosen, author of ‘The Safe Hiring Manual,’ the first comprehensive book on background checks. “However, the use of these online sites for employment screening can present legal risks, including privacy and discrimination issues.”

  • Discrimination: When using Internet for employment screening, employers may be accused of disregarding candidates who are members of protected classes by viewing online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religion, marital status, or medical condition. All of those are aspects of applicants that may be revealed by an Internet search, says Rosen. 
  • Credibility: Rosen advises employers to make sure what they see online actually refers to the applicant in question since many people have “computer twins” with similar names. Another problem is “cyber slamming” which is usually done anonymously and includes derogatory comments on websites or setting up a fake website that does not belong to the supposed owner.
  • Accuracy: Another issue is whether the statements made are even true, says Rosen. In other words, if negative information about a job candidate is found on an Internet search or a social networking site, how is the employer supposed to verify that the negative information is accurate, up-to-date, authentic, and if it even belongs to or applies to the candidate in question?
  • Privacy: Rosen says another problem with Internet background checks yet to be fully explored by the courts is privacy.  Contrary to popular opinion, everything online is not necessarily “fair game” for employers. If a person has not adjusted the privacy setting so that his or her social network site is easily available from an Internet search, that person may have a more difficult time arguing that there is a reasonable expectation of privacy. However, adds Rosen, 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 it is the community norm, and a generally accepted attitude, that social media sites are off limits to unwelcome visitors even if the door is left open. 

Despite these risks, employers seem intent on using search engines and social media for screening. A 2009 survey conducted by job networking site of more than 2,600 hiring managers found 45 percent of employers 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.

To minimize the legal risks of using the Internet for employment screening, Rosen offers the following steps for employers considering using search engines or social network sites for screening:

  • For employers wanting to use the Internet 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, references from supervisors, and a background check.
  • In addition, employers may want to consider having a clear internal policy and documented training that Internet searches are 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 (KSA) required for the position. It also helps to have objective and documented methods and metrics on how to 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.

“Using the Internet to background check jobs candidates is not risk-free, especially since there has yet to be clear law or court cases that show how to proceed in this area,” stresses Rosen. “The bottom line is that employers should proceed with caution, especially when it comes to social networking sites, before assuming everything is fair game online or face potential legal landmines that could destroy their business.”

About Employment Screening Resources (ESR): Founded in 1997 in the San Francisco Bay area with a mission to help employers and employees maintain safe workplaces, Employment Screening Resources (ESR) is accredited by The National Association of Professional Background Screeners (NAPBS®) and wrote the book on background checks with ‘The Safe Hiring Manual’ by founder and President Lester Rosen. For more information about ESR, visit or email ESR News Editor Thomas Ahearn at [email protected].