Many of today’s employers have focused with laser-like intensity on using the plentiful amount of information found on the Internet to conduct employment screening background checks on job candidates using search engines like Google, social networking sites such as Facebook and Twitter, and blogs, videos, and pictures.
What is overlooked by employers in the rush to use the information found online for employment screening of job candidates, according to attorney and safe hiring expert Lester Rosen, are the legal risks involved with conducting so-called 'Internet background checks' and how employers may best manage these risks.
“Employers have uncovered what appears to be a treasure trove of job applicant information on the Internet,” says Rosen, Founder and President of Employment Screening Resources (ESR), a background check company accredited by the National Association of Professional Background Screeners (NAPBS). “However, the use of these online sites for employment screening can present legal risks that include issues with discrimination, credibility, accuracy, and privacy."
Discrimination
Employers can find themselves in hot water when utilizing Internet search engines and social networking sites for screening due to allegations of discrimination, says Rosen. When using Internet for employment screening, employers may be accused of disregarding candidates who are members of protected classes by viewing online profiles of job candidates. A candidate may say or depict all sorts of things that reflect race, creed, color, nationality, ancestry, medical condition, disability, marital status, sex (including pregnancy), sexual preference, age (40+), or other facts an employer may not consider under federal law or state law. All of these aspects of applicants may be revealed by a search of the Internet.
Credibility and Accuracy
Another issue is whether the information found online is both credible and accurate, keeping in mind that the idea behind many social networking sites is to allow friends to communicate with friends, and users of these sites have been known to embellish. Rosen advises employers to make sure what they see and read online actually refers to the job 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. In other words, explains Rosen, 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 credible and accurate, and if it even belongs to or applies to the job candidate in question?
Privacy
Rosen says yet 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.
Managing Risks of Internet Background Checks
To manage the legal risks of using the Internet background checks, Rosen offers the following steps for employers considering when using search engines or social network sites for employment screening:
Obtain Consent from Applicant - For employers wanting to use the Internet to screen a job candidate, Rosen suggests 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.
Clear Internal Internet Screening Policy - In addition, Rosen says 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.
In-House Screeners not Involved in Hiring Decisions - Rosen says another method employers may use is to have a person, or persons, in-house not connected to any hiring decisions review the social network sites in order to ensure impermissible background screening information is not given to the decision makers. 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, who is the author of 'The Safe Hiring Manual,' the first comprehensive guide to employment screening. “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.”
Thomas Ahearn is Editor of the ESR News Blog at Employment Screening Resources (ESR).
