Background Checks on Applicants Using Facebook

Those of you who have followed our blog over the past few years know that we have been a harsh critic of using social networking sites to conduct background checks on employees.  The biggest driver in our arguments against this practice has always been our concern is that doing so was a lawsuit waiting to happen.  Potential discrimination, negligent hiring, lack of transparency, no dispute process, etc.

And yes, we still have these concerns.  However, we can’t bury our heads in the sand anymore and say that employers just shouldn’t do it.  In fact, we’ve heard about cases where employers are held accountable for not checking a public site, when they could have avoided incident if they did.

So where does this leave us.  I guess somewhere in the middle.  If you look at the numbers, more and more employers are using social networking sites as part of their employment screening procedures.  As a CRA, I am still not sure I want anything to do with offering the service on behalf of my clients.  But, I do know for sure that I would like to help them avoid the potential risks inherent in this practice.

Earlier today, I published a guest article on EmployeeScreen University entitled “Screening Job Applicants with Facebook”, written by Molly DiBianca.  Molly is a labor and employment attorney who has been an outspoken advocate of this practice.  While I have not always agreed with her position, I have a great amount of respect for her as a trailblazer in this regard.  She offers solid advice that employers can use if they decide to engage in social networking employment background checks.

I encourage you to read the article in it’s entirety and draw your own conclusions about whether this is right for your organization.

P.S. In a roundabout way, this post also serves as an apology to Social Intelligence’s Max Drucker for not taking the time to listen to his arguments about this practice before firing off.  I agreed be more open-minded and Max agreed not to kick my ass:)

Screening Job Applicants with Facebook

By Molly DiBianca, Labor and Employment Attorney at Young Conaway Stargatt & Taylor, LLP

The popularity of social-networking sites, such as Facebook and LinkedIn, has exploded in the last several years. Facebook boasts more than 600 million users. Facebook has become a treasure trove of information for anyone looking to discover the “truth” about an individual’s private life. Divorce attorneys report that Facebook is the single best online source for information to be used in divorce or custody proceeding. Law –enforcement agencies across the country turn to Facebook to locate suspects and gather evidence. And insurance investigator have put their telephoto lenses away—today they can find out all about a beneficiary’s activities from anywhere with an Internet connection.

So it only makes sense that employers, too, would want to put Facebook to work. More and more employers report that they’ve eliminated a candidate from consideration after viewing something negative in the candidate’s Facebook profile. But this practice does have legal risks. The good news, though, is that those risks can be avoided by following the steps discussed below.

What Not to Do

As an initial matter, employers should be aware of what they should not do when surfing the Web. First, do not ask anyone—including current employees and job applicants—for his Facebook password or other log-in credentials. The town of Bozeman, Montana instituted a policy that required applicants to turn over their passwords. Bloggers, tweeters, and Facebookers across the globe united in online protests and Bozeman quickly cancelled its policy. In February 2011, the Maryland Department of Corrections suspended a similar policy when the ACLU campaigned against it on its blog and on YouTube.

Second, do not try to gain access to a candidate’s profile indirectly. For example, don’t ask another employee, who is Facebook friends with the candidate, to show you the candidate’s profile. Last year, the New Jersey Supreme Court upheld a jury verdict against an employer for similar conduct, finding that such tactics constituted a breach of the employee’s privacy.

Third, do not send a Facebook friend request to the candidate without disclosing the real reason for the request. Similarly, do not instruct or permit anyone else to do the same on your behalf. If a candidate’s privacy settings prevent you from accessing his profile, the better idea is to tell the candidate in advance that you want him to accept your friend request but only for 24 or 48 hours. And be clear about what it is that you’ll be looking for once access is granted, as discussed in the following sections.

Start Talking

Before you start surfing the Web, first gather the key decision makers to discuss whether the organization should adopt this practice at all. Exchange ideas about the potential benefits and concerns associated with searching for information on Facebook or Google. Consider including as many stakeholders as practicable, including members of senior management, Human Resources personnel, and hiring managers.

Some organizations feel that a Facebook search does not comport with their culture or core values and, as a result, have decided not to use such searches as part of the hiring process. This question does not have a “right” answer but should be given significant consideration before implementing an official policy or practice.

Assuming the discussion results in the decision to incorporate Internet searches into the background-check process, you should next discuss, in detail, exactly what it is that you’ll be looking for in your search. Aim to identify up to 10 specific things that would give you cause for alarm if seen on a candidate’s online profile.

Common red flags for many employers include the candidate’s use of or promotion of the use of illegal drugs, any type of language or imagery that promotes hate, threats of physical violence or other hostile or aggressive comments. There may also be legitimate concerns about a candidate who posts negative comments about his former employer or co-workers or who discloses inappropriate information belonging to a former employer or customers.

You also can identify some positive online activities, as well, such as if the candidate maintains a blog, which is well written or, even better, related to his professional interests. Once you’ve finalized your checklist, put it in writing. Create a form that lists the various items (good and bad) that you’ll be looking for. Leave a space for the name of the company representative who will be performing the search, the date the search was conducted, and the name of the candidate.

Start Searching

Once your list is created, the rest is easy—but equally important. Designate an individual  who will perform the actual search (i.e., the “Searcher”). Here is the key: the Searcher must not be involved in the hiring decision. Human Resources can perform the search, for example. In smaller organizations without a dedicated HR staff, the manager of one department may be the Searcher when a different department is hiring, and vice versa.

Once the appropriate person is designated, the search may begin. If any of the items on the list are found, the Searcher documents them on the form and, preferably, prints or makes a copy (i.e., with the print screen feature) of the offending material. That information and only that information may then be turned over to the hiring manager for consideration.

The reason this step is so critical is that it effectively prevents the hiring manager from learning information that cannot be used in the hiring process—such as religion, sexual orientation, or other protected characteristic. This separation of knowledge can be a key component to defending against a failure-to-hire lawsuit.

Start Talking (Again)

In the event that a hiring manager is inclined not to hire a candidate as a result of what turned up during the online search, there are a few additional steps that should be taken. First, the hiring manager should present the candidate with the information. Identify the basis for concern and provide the candidate with a meaningful opportunity to explain. There is, after all, more than one John Smith registered with Facebook . And, since the Searcher has no interaction with the candidate, mistaken identity is not out of the realm of possibility.

Finally, make sure that everyone in the organization with any connection to the hiring process is aware of and understands the new practice. Make it clear to supervisors that they are not to search the Internet for information about a candidate prior to the decision to hire. Have supervisors acknowledge the policy in writing and review it periodically to ensure compliance.

Margaret (Molly) M. DiBianca maintains a legal practice consisting of equal parts litigation and client counseling. She represents employers in a variety of industries in employment rights claims, discrimination matters and equal employment disputes at the state and federal court level. She defends employers against claims brought by former and current employees and assists employers seeking to enforce restrictive covenants.

She assists clients with internal investigations, wage-and-hour reviews, and employment-practices audits. Molly also counsels employers in the facilitation of reasonable accommodations, and strategies for compliance with federal leave laws.

Training is an integral component of Molly’s preventative-practices philosophy. As part of that philosophy, Molly presents customized training to managers and executives during on-site seminars and workshops. She is a frequent speaker and teaches best employment practices to human resource professionals, executives and in-house counsel.

When she is not speaking to a live audience, Molly carries her message to audiences across the country as Editor of and primary contributor to the Delaware Employment Law Blog. Molly is a monthly contributor to the Delaware Employment Law Letter, the only monthly newsletter exclusively for Delaware employers.

Debunking Myths About Employment Credit Checks

Be still my heart.  For the second time in the last month, a member of the media has written a fair and balanced article on how employers use credit reports as part of the background screening process (see post on CNBC article).  This time, Erica Sandberg of the San Francisco chronicle writes about six misconceptions critics have about how they are used. Her timing is perfect as we reported earlier today that Maryland has joined Hawaii, Oregon, Illinois and Washington in enacting laws that severely restrict the use of credit reports.

I’ve included my four favorites here as well as my quick responses to these myths.  Of course, Erica did a much better job of explaining them and providing a better picture of what is really going on.  I strongly encourage you to read the full article.

  • Most Employers Pull All Applicant’s Reports– Not true.  See SHRM study which reveals that only 13% of employers indicated they run credit on all applicants.
  • Employers and Lenders Look for the Same Information– Not true.  Employers are not privy to a credit score or account numbers.
  • Poor Credit Will Immediately Disqualify You– Not true.  If employers only hired people with good credit, they’d hardly be able to hire anyone
  • Employers Use Credit Checks to Discriminate– Really? Does anyone actually believe this?  While Erica provides a better explanation than this, I refuse to dignify this notion with a response.

Note to NFL: You Better Do Your Background Checks

You might recall a story we posted last month about a Sports Illustrated/CNN poll that found 7% of all players on the roster of NCAA Football’s Top 25 list had been charged with, or convicted of criminal activity.

In anticipation the National Football League draft, BleacherReport.com just published a list of the Top 10 Craziest Arrest Stories of Players in this year’s draft.

Lowlights include Notre Dame’s Michael Floyd, USC Quarterback Mitch Mustain and Arkansas Quarterback, Ryan Mallett (formerly the pride of the Michigan Wolverines).  Thankfully, there are no Ohio State Buckeyes on this year’s list.  They must have been busy selling memorabilia or bartering for tattoos.

So, all 32 teams are on notice.  Start the vetting process early and often.  I can hear Hank Williams Jr. now, “Are you ready for some background checks?”

By the way, perhaps another blog post for another time.  We should evaluate which NFL general managers have robbed their teams with awful player selections.  I still can’t get over Ernie Accorsi of the Cleveland Browns drafting of Duke University linebacker Mike Junkin with the 5th pick in the 1st round.  I’m taking nominations now.

4/26/2011 Philadelphia "Ban the Box" Law Protects Those With Criminal Records

Philadelphia Mayor Michael Nutter has signed into law the “Fair Criminal Record Screening Standards” which will prohibit both public employers and private employers with 10 or more employees from asking applicants if they have been convicted of a crime on the job application.  The law also prohibits employers from making an adverse hiring decision based on an arrest that did not result in a conviction.

This “Ban the Box” legislation (Bill No. 110111-A) was signed into law on April 13, 2011 and will take effect on July 12, 2011.   It is designed to allow those convicted of criminal activity a chance to make it further into the process before an employer can make such inquiries.

Background checks are still permissible and given the fact that employers cannot ask about convictions, it is vitally important they are conducted to ensure an informed hiring decision.

“Ban the Box” legislation is picking up steam across the country as many cities, towns and states have passed or are considering laws which they say will allow those with criminal records to have a fair chance of finding employment.  Most of these laws only affect public employers.  However, the states of Massachusetts and Hawaii are similar to Philadelphia in that they also apply to the private sector as well.

For more information about this law, check out Seyfarth Shaw’s publication, Philadelphia Passes A New “Ban The Criminal Box” Law That Applies To Private Employers.

Philadelphia “Ban the Box” Law Protects Those With Criminal Records

Philadelphia Mayor Michael Nutter has signed into law the “Fair Criminal Record Screening Standards” which will prohibit both public employers and private employers with 10 or more employees from asking applicants if they have been convicted of a crime on the job application.  The law also prohibits employers from making an adverse hiring decision based on an arrest that did not result in a conviction.

This “Ban the Box” legislation (Bill No. 110111-A) was signed into law on April 13, 2011 and will take effect on July 12, 2011.   It is designed to allow those convicted of criminal activity a chance to make it further into the process before an employer can make such inquiries.

Background checks are still permissible and given the fact that employers cannot ask about convictions, it is vitally important they are conducted to ensure an informed hiring decision.

“Ban the Box” legislation is picking up steam across the country as many cities, towns and states have passed or are considering laws which they say will allow those with criminal records to have a fair chance of finding employment.  Most of these laws only affect public employers.  However, the states of Massachusetts and Hawaii are similar to Philadelphia in that they also apply to the private sector as well.

For more information about this law, check out Seyfarth Shaw’s publication, Philadelphia Passes A New “Ban The Criminal Box” Law That Applies To Private Employers.

4/26/2011 Maryland Gov. Enacts Law to Curb Use of Credit Reports

And it’s official.  The state of Maryland has joined Hawaii, Washington, Illinois and Oregon by curbing employers use of employment credit reports.  Maryland Governor Martin O’Malley signed into law the Maryland Job Applicant Fairness Act on April 12, 2011 which prohibits employers’ use of credit reports in determining suitability for employment. However, there are exceptions for financial institutions as well as those who are regulated or required to do so by state and, or federal law.

According to labor and employment attorney, Pam Devata of Seyfarth Shaw, “The Act also provides limited exceptions that allow employers to request or use credit information where such information is related to a ‘bona fide purpose that is substantially job-related.’  The bona fide purpose exception generally applies to those positions involving money-handling or other confidential job duties.  For instance, employers may request or use credit information for employees in managerial positions that control or direct part of the business, employees who are provided expense accounts or corporate credit cards, and employees who have access to confidential business information. Notably, where an employer chooses to request or use credit information for a bona fide purpose, it must disclose its intent to do so in writing to the employee or applicant.”

Violators of the law are subject to fines of up to $500 for an initial violation and up to $2,500 for repeat violations.

The law is set to take effect on October 1, 2011. Employers are encouraged to revisit their background screening guidelines to ensure they are in compliance.

Maryland Bans Use of Employment Credit Reports

And it’s official.  The state of Maryland has joined Hawaii, Washington, Illinois and Oregon by curbing employers use of employment credit reports.  Maryland Governor Martin O’Malley signed into law the Maryland Job Applicant Fairness Act on April 12, 2011 which prohibits employers’ use of credit reports in determining suitability for employment. However, there are exceptions for financial institutions as well as those who are regulated or required to do so by state and, or federal law.

According to labor and employment attorney, Pam Devata of Seyfarth Shaw, “The Act also provides limited exceptions that allow employers to request or use credit information where such information is related to a ‘bona fide purpose that is substantially job-related.’  The bona fide purpose exception generally applies to those positions involving money-handling or other confidential job duties.  For instance, employers may request or use credit information for employees in managerial positions that control or direct part of the business, employees who are provided expense accounts or corporate credit cards, and employees who have access to confidential business information. Notably, where an employer chooses to request or use credit information for a bona fide purpose, it must disclose its intent to do so in writing to the employee or applicant.”

Violators of the law are subject to fines of up to $500 for an initial violation and up to $2,500 for repeat violations.

The law is set to take effect on October 1, 2011. Employers are encouraged to revisit their background screening guidelines to ensure they are in compliance.

Embarrassing Ruling Should Give EEOC Pause

A federal judge has ordered the EEOC to reimburse a staffing company for over $750,000 worth of legal fees and expert witness costs it incurred as a result of  overzealous prosecution tactics over the companies background screening practices.  Even worse was that they ignored evidence that would have torpedoed their case.

The premise of the case was the EEOC’s contention that PeopleMark automatically rejected candidates that had criminal records.  The EEOC put together a list of 286 applicants they said were denied employment based on PeopleMark’s blanket policy.  Evidently, they wouldn’t release the names of these applicants until they were compelled to do so by the court.  When PeopleMark received the list, they discovered that 22% of these applicants with criminal records were actually hired.  They even notified the EEOC of this fact, yet the EEOC continued to pursue the case.

We should all be concerned about this.  Why would the EEOC prosecute this case if they knew their information was incorrect?  The court didn’t understand and in turn threw out the suit and made the EEOC reimburse PeopleMark for their legal expenses.  It takes a lot to get a judge to to take such an action.  At the end of the day, these actions by the EEOC aren’t good for employers, they aren’t good for taxpayers who will be stuck with the bill and they ultimately can’t be good for those who have legitimate discrimination claims.

Check out this article written by Seyfarth Shaw LLP attorneys, Christopher J. DeGroff and Gerald L. Maatman Jr.

How ‘Shoot First, Aim Later’ Tactics Cost The EEOC

Law360, New York (April 13, 2011) — Joining a growing line of cases reflecting judicial intolerance for questionable litigation tactics, the recent ruling in EEOC v. Peoplemark Inc. (W.D. Mich. March 31, 2011), represents solid support for employers targeted by questionable government-initiated litigation.

In EEOC v. Peoplemark Inc., the Equal Employment Opportunity Commission alleged that the staffing company’s policy of not hiring individuals with a criminal record had a disparate impact on African-Americans. Notably, the EEOC has repeatedly signaled that it intends to attack these blanket criminal background policies as disproportionately and discriminatorily affecting minorities.

Indeed, the court in Peoplemark Inc. noted that an EEOC commissioner had even highlighted this case in a public meeting in 2008, noting that the commission had unanimously approved the case against Peoplemark.

The problem with the EEOC’s theory was its assertion that Peoplemark’s had a blanket no-hire policy was simply not true. In fact, of the 286 individuals the EEOC purported to represent in this case, 22 percent actually had been hired and placed by Peoplemark. Significantly, the court found that even after the EEOC knew that was the case, it proceeded with the litigation anyway.

The EEOC based its claims on a three-year investigation into a charge filed by Sherri Scott. Scott was a two-time felon with convictions for housebreaking and larceny who Peoplemark chose not to hire because of her criminal record. After hotly contested subpoena enforcement actions, the company gave the EEOC over 18,000 pages of documents with the detailed personnel information of the group the EEOC sought to represent.

Based on its investigation, the EEOC filed suit on May 29, 2008, claiming that Peoplemark had a blanket policy of not hiring anyone with a criminal record. Peoplemark denied that it had such a categorical policy.

The EEOC litigated the case for a total of 3 1/2 years, based almost exclusively on the fact that Scott had not been hired, and some “early statements” by a company witness. In April 2009, the EEOC finally identified the 286 individuals it claimed it represented (and only after it was forced to do so by the court).

Peoplemark’s expert was able to determine that 22 percent of these individuals had actually been hired and placed by the company. Even after the EEOC had the materials showing that this was the case, it still pursued the matter. It was only after the EEOC failed to designate a statistical expert per a scheduling deadline that it finally folded and agreed to dismiss the case.

In its motion for fees, costs and sanctions, Peoplemark argued that the EEOC had deliberately caused the company to incur attorneys’ fees and expert fees when it should have known that the company did not have the blanket no-hire policy. The court agreed.

Citing the longstanding case of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the court noted that it had the authority to assess fees against the EEOC if the action it brought was “frivolous, unreasonable or without foundation.”

In the court’s view, if the EEOC had done the investigation it should have done with its own represented individuals, it should have known that Peoplemark had, in fact, hired a number of the allegedly injured individuals, thereby undercutting the EEOC’s central “blanket policy” position.

Indeed, the court suggested that the EEOC should have known this critical flaw before it even filed the case, after three years of an intense administrative investigation.

The court’s decision found that the final nail in the EEOC’s coffin was its failure to identify a statistical expert to champion its disparate impact claim. The court noted that the EEOC knew from the day it filed this case that it would rely heavily on expert statistical testimony, and that it would “carry a major price tag for both sides.”

Nevertheless, the EEOC failed to identify an expert within the time period set in the court’s schedule, even after receiving significant extensions. The EEOC’s failure to pursue the statistical component of its case led the court to find that an award of “attorneys’ fees is appropriate because of the unnecessary burden imposed on defendant.”

The remainder of the court’s decision is a detailed analysis of how it would calculate the fees award. After making some minor deductions for duplicative or vague requests, the court awarded Peoplemark $219,350.17 in attorneys’ fees. The larger component of the sanction, however, was $526,172 in expert fees.

The EEOC challenged the expert fees as being too high, citing what it had paid its (notably, unused) expert. The court found that the EEOC’s argument was like comparing “apples to oranges” and rejected its position. After adding in some additional miscellaneous expenses, the court ordered the EEOC to pay Peoplemark a total of $751,942.48. This is one of the largest sanction awards ever against the commission.

EEOC v. Peoplemark Inc. joins cases like EEOC v. Bloomberg LP, EEOC o/b/o Serrano, et al. v. Cintas Corp., and EEOC v. CRST that suggest a growing intolerance for the EEOC’s “shoot-first, aim later” tactics in large-scale pattern or practice cases.

The court in Peoplemark concluded that the stakes in these systemic cases are high, and expense of litigating them should not be taken lightly. Employers are well-served to pressure-test the EEOC’s theories from the onset of a case by requiring the EEOC to “show its work” in all aspects of its claims. Faced with case authority like EEOC v. Peoplemark Inc., however, the EEOC will find it far more difficult to stonewall the targets of its litigation.

Brockton, Mass HR Director Retires Amid Background Check Snafu

We posted a horrific story earlier this week about a Brockton, MA elementary school student who was raped by a student teacher.  Now, the school’s longtime human resource director has announced her retirement, effective at the end of the school year.

There was a lot of misinformation about whether the school had conducted a background check or not.  They have now admitted that in addition to their earlier admissions that they failed to meet their requirement of conducting a new criminal background check on all personnel in January of 2010, that they neglected to check the backgrounds on “a handful” of student teachers.

I’m sure that the oversight was not due to malice.  It’s just an unfortunate situation that might have been avoided should the school have followed through properly.  Now, a poor little girl’s life has been changed forever, the school faces what will be costly litigation along with a settlement or judgement against them (of which tax payers will no doubt foot the bill) and a well respected employee’s career has been ruined.