EmployeeScreenIQ Blog

Well we knew it was only a matter of time until the practice of outsourcing social media background checks encountered intense scrutiny.  To their credit, the folks at Social Intelligence managed to quell concerns from the FTC.  However, Senators Al Franken and Richard Blumenthal are clearly not convinced that this practice is legal.

And while I know this isn’t going to be fun for SI, I do think that the inquiry and subsequent findings will provide us all with a road map of what is to come.  Here is an excerpt of the joint letter that has sent by the senators.

We are writing to request information about the business practices of Social Intelligence Corporation as they relate to personal privacy. We are concerned that your company’s collection of online and social media information about job applicants and distribution of that information to potential employers may contain inaccurate information, invade consumers’ right to privacy online, violate the terms of service agreements of the websites from which your company culls data, and infringe upon intellectual property rights.

Your company bills itself as “a background screening service that enables employers to navigate the complicated landscape of social media with clear, consistent, and insightful results.” According to sample background reports published in the media, information is collected from applicants’ profiles on social networking sites like Facebook and LinkedIn, personal websites, and other online information sources that Social Intelligence Corporation matches to applicants. We are concerned that there are numerous scenarios under which a job applicant could be unfairly harmed by the information your company provides to an employer. We are also concerned that your company’s business practices may in some cases violate the law.

They then ask for a response to a boat load of questions concerning their practices which can be found at Norwalk.com Now, many of these questions are easily answered.  However there are a few that will be worth hearing responses to.  Particularly, the following:

1. The reports that your company prepares for employers contain screenshots of the sources of the information your company compiles. One publicly available report contains pictures of a user’s Facebook profile, LinkedIn profile, blog posts for a previous employer, and personal websites. These websites are typically governed by terms of service agreements that prohibit the collection, dissemination, or sale of users’ content without the consent of the user and/or the website. LinkedIn’s user agreement, for example, states that one may not “rent, lease, loan, trade, sell/re-sell access to LinkedIn or any information therein, or the equivalent, in whole or in part.” Your company’s business model seems to necessitate violating these agreements. Does your company operate in compliance with the agreements found on sites whose content your company compiles and sells? If so, how?

2. More troubling than the apparent disregard of these websites’ terms of service are what appear to be significant violations of users’ intellectual property rights to control the use of the content that your company collects and sells. Your company includes pictures in its background reports; example reports have included a picture depicting the subject holding a gun to illustrate alleged “potentially violent behavior.” These pictures, taken from sites like Flickr and Picasa, are often licensed by the owner for a narrow set of uses, such as noncommercial use only or a prohibition on derivative works. Does your company obtain permission from the owners of these pictures to use, sell, or modify them?

Keep in mind that an inquiry is just that.  Perhaps SI’s response will satisfy their curiosity.  Unfortunately, right or wrong, I have a feeling that these inquiries are only the sign of things to come.  Stay tuned.

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I’ve been reading a lot about a recent NLRB case which focused on their contention that an employee should not have been fired for posting negative comments on Facebook about her employer and co-workers.  And while this ruling has no bearing on pre-employment screening, I wonder how it could.

Here are the specifics according to the National Law Review:

In May 2010, HUB hired Lydia Cruz-Moore, a domestic violence advocate who worked one day per week at HUB’s offices. Cruz-Moore complained about the job performance of some of her co-workers to another employee, Mariana Cole-Rivera. Cruz-Moore also told Cole-Rivera that she was going to discuss her concerns about the other employees’ job performance with management.

From her home computer, Cole-Rivera posted on her Facebook page that Cruz-Moore believed HUB employees “don’t help [their] clients enough” and asked her coworkers “how do u feel?” In response, several employees posted complaints about Cruz-Moore’s criticisms, some of which included profanity. Three days later, Cole-Rivera and four of the other employees who posted on Facebook were fired for bullying Cruz-Moore and violating HUB’s “zero tolerance” anti-harassment policy.

An administrative law judge in Buffalo, New York ruled that the termination violated the rights of Ms. Cole-Rivera and her cohorts citing the following reasons:

• “It is irrelevant to this case that the discriminatees were not trying to change their working conditions and that they did not communicate their concerns to Respondent…. I find that the discriminatees’ discussions about criticisms of their job performance are also protected.”
• “[A]n employer violates Section 8(a)(1) in disciplining or terminating employees for exercising this right—regardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.”
• “Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted.”

Okay fine.  So whether you agree with this ruling or not, it begs the next question.  What happens if one of Ms. Cole- Rivera’s future prospective employers performs a social media search or Google search and finds out about this ordeal?  There’s a better than good chance that she would be deemed a malcontent or bad apple.  And here’s the question: would it be fair game?  If you ask me, I would say yes (this from the guy who has been warning employers about the use of social media checks).  To me, she should not have used a public forum to air these concerns.

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So there I was on one knee with my hands cuffed behind my back in Little Italy on a beautiful day in May of 1996.  Click.  Someone took a picture.  People started to gather around.  More clicks and flashes.

I’ve been thinking a lot about this moment for a few months now since I’ve been contemplating the role social networkings sites should or should not have in the employment background screening and hiring process.

Why? Because this was one of the most important days in my life.  It was the day I proposed to my wife.  You see, I decided to get creative with my proposal.  I always thought it would be fun to have a police officer pull me over with my wife in the passenger seat and then instruct her to take the registration out of the glove compartment.  Of course, instead of the registration, she’d find the ring.  And that’s exactly what happened.  I just didn’t know that the officer (who was a friend of the family) would actually put me in cuffs (that was a little side idea he and my father hatched unbeknownst to me) but it definitely made the moment seem all the more real.

So why am I telling you this story?  I had mentioned that a number of people took pictures.  Some of those people were members of my family who were lurking around waiting for the big moment.  Others were complete strangers that couldn’t believe the spectacle.  So far as I know, those pictures were never posted on Facebook.  But what if they were and a prospective employer saw them?  Would they understand this was a gag?  Would they know it wasn’t real?  What if they never asked me about it?

What if it was real?  Should an employer be able to use that against me?

There’s been a lot of talk  for a couple years now about whether employers can and should use social networking sites are part of their employment screening processes.  Findings from our annual background screening survey showed that of the nearly 800 respondants, 25% used LinkedIn, 34% used Google, 30% used Facebook and 22% used Twitter to screen candidates.  44% said they would like their screening provider to offer this service in the future.  And while I was staunchly against this practice for a long time, I am slowly softening my position.  However, it is stories like these that continue to give me reason for pause.

I’m sure we all have a story or two like this.  So what do you think?  Are social networking sites fair game?

P.S. In spite of the fact that I scared the begeebies out of my wife, she actually said yes (sucker!) and we’ve been married for 14 years.

P.P.S.  The guy in the cuffs above is not me.  Did you really think I’d post a picture of myself in handcuffs?

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I had a couple thoughts rolling around in my empty head over the past couple of days and thought you’d enjoy some insight into my frontal lobe.

First and foremost, good riddance to Osama Bin Laden.  I’m sure both you and Adolph Hitler will enjoy each other’s company in a very warm spot for eternity.  I just regret that each of you were cowards in the end.  (Hitler killed himself and OBL used a woman as a human shield in his final stand.)

On t0 background checks now . . .

Issue #1

Continued news out of Brockton, MA where a student tutor was accused of raping an elementary school student.  All charges have been dropped due to lack of evidence.  Further, a CORI background check was conducted on the accused tutor and no record was found.

I hope that the school takes no solace in either of these two developments.  Their lack of proper protocol is still not excused.  They didn’t conduct a background check on this individual and it was later revealed that they failed to meet a statewide directive to rescreen all employees in 2010.

Further, I hope no one is satisfied that a CORI background check is sufficient to ensure thorough screening for school employees.  What happens if a potential employee committed a crime outside of the state of Massachusetts? (And why do I constantly need spell check to tell me how to spell Massachusetts?)

Issue #2

I wrote a post last week about my thoughts on employers’ use of social networking sites as part of the background screening process and I’ve thinking about the kind of person that has a public profile on Facebook or other similar social networks.  Thought I would express myself in an open letter (feel free to forward as you see fit).

To all mental midgets that are dumb enough make your profiles public:

You have no right to privacy when it comes to your pages.  I guess if you are dumb enough to allow the world to view your profile, you are probably the same idiot that posts the kinds of stupid things that would cause you not to get hired.

That’s all I have for now.  But I’m sure before too long another thought might emerge.  Stay tuned.

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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:)

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The NLRB is flexing their muscle again when it comes to the protecting employees’ negative public remarks about their employers.  This time they are going after Thomson Reuters for disciplining an employee for tweeting that the company was not being honest with members of the writer’s guild.

You’re joking, right? Just like with the Connecticut case we posted about last month, as a reasonable individual shouldn’t I be prepared to suffer the consequences about publicly calling out my employer? Who’s dumb enough to do this and think there are no repercussions? I’m sure some would argue first amendment right to free speech. And they would be right. But the first amendment doesn’t guarantee employment. Unbelievable for the NRLB to think this type of public utterance is protected.

I think my comments last month accurately portray my thoughts on this case:

Well, if the NLRB doesn’t believe that making disparaging remarks about your employer can be construed as offensive then they won’t mind me saying that they are full of s#@!

Sorry, I’ll only go so far in protecting employees’ rights when it comes to background checks on social networking sites. If someone is dumb enough to make these comments in a public forum, they should suffer the consequences.

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I think we can all agree that it might not be the smartest thing in the world to refer to or describe your boss as a derogatory term reserved for the male genitalia. One might expect that doing so would be grounds for some sort of corrective action at best. But hey, maybe you’ve just used this term to a small group of colleagues and the boss won’t find out anyway. Maybe so. Now, what happens when you refer to him or her as such on your Facebook page? Shouldn’t you expect to be disciplined or even fired?

No so fast says the National Labor Relations Board. Here’s the back story according to Time Magazine.

Dawnmarie Souza’s comments on her Facebook page didn’t win her any points with the boss, but the rest of us owe her a debt of gratitude. In a rare test of old law on a new medium, she helped us understand just how little the online world differs from the land of bricks and mortar.

Souza’s career as a paramedic at American Medical Response of Connecticut Inc. may not have been too bright even before she called her boss various genital parts in a November 2009 Facebook posting. She had been hauled on the carpet for several incidents of allegedly rude behavior and had further rankled the emergency-response company by asking to have a union representative present when she was to be questioned about one particular customer’s complaint that she had been rude, according to a National Labor Relations Board (NLRB) investigation of the case. The company denied the request, and that, in turn, set off her colorful Facebook flurry. American Medical fired her 23 days later.

The federal National Labor Relations Act prohibits employers from punishing employees, whether or not they are members of a union, for talking about wages or workplace conditions or forming a union. The idea is to ease communication among workers so they can decide whether a union is necessary.

American Medical, the NLRB argued in a complaint filed Oct. 27, 2010, had violated the act in three ways. First, by refusing Souza’s request for a representative of the union of which she and her co-workers were members. Second, by firing her for her posts. And third, by maintaining a “blogging and Internet-posting policy” that “prohibited employees” from, among other things, “making disparaging comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”

Well, if the NLRB doesn’t believe that making disparaging remarks about your employer can be construed as offensive then they won’t mind me saying that they are full of s#@!

Sorry, I’ll only go so far in protecting employees’ rights when it comes to background checks on social networking sites. If someone is dumb enough to make these comments in a public forum, they should suffer the consequences. And by the way, why would she want to continue working for this company if she felt this way in the first place? And since this publication is only available to those who read it, I’m sure the NLRB would have no problem hiring us to perform employment background checks on their behalf after these remarks.

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The Maryland ACLU is advocating on behalf of a Maryland corrections officer who objects to the state’s demand that he provide them with his Facebook account password as a condition of employment. Now, we know that it is becoming more and more common for employers to check out their candidates’ and employees’ Facebook pages as part of the background check process, but their passwords?

This didn’t work out so well for the city of Bozeman, MT a couple years ago. In fact, they had so much negative publicity when it came to national media attention that they abolished the practice shortly thereafter.

Check out the USA Today story below.

Worker Objects to the Use of Facebook for Background Checks

The American Civil Liberties Union is championing the case of a Maryland corrections officer, Robert Collins, who does not believe his employer should have the right to scour his personal Facebook account as a condition of employment.

The ACLU’s Maryland chapter sent this letter to state officials on Collins’ behalf. According the ACLU, the Maryland corrections division has a “blanket requirement” that job applicants, as well as current employees undergoing recertification, provide the government with their social media account usernames and personal passwords for use in background checks.

The ACLU in this blog post calls the policy “a gross breach of privacy” and a violation of state and federal law “which protect privacy rights and extend protections to electronic communications.”

As of late last week, the advocacy group had received no response from the state.

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Over the past few years EmployeeScreenIQ has delivered white papers, articles and blog postings covering a myriad of topics, most notably, the use of Social Networking sites in the recruiting and employment screening process.  Like it or not, social media has become a very important part of our lives.  A few years ago, a conversation might end with “Are you on Facebook?” Today, that conversation might start with “I loved your Facebook post yesterday, and by the way, your grandmother had the funniest tweet last week!”  In today’s day and age, if you are not using or watching social media, you are not part of a whole new world.  Today, Facebook boasts over 500 Million users, over 50% of them login each and every day.  Twitter and Linked in are quickly gaining with over 100million and 50 Million users respectively.

Twitter alone has helped shaped the movement in Egypt.  According to Mashable:

Over the past several days, Twitter and other social media platforms have been flooded with links, images and information about the current political crisis in Egypt.

Social media intelligence firm Sysomos has analyzed a lot of the Egypt-related tweets and mined them for important cues, such as keywords and location data, that might show us just how news and information about Egypt are being disseminated via social media.

Twitter has been framed — by its founders, no less — as an important news-bearing medium in this any many other situations of global portent. Even while the service, and in fact, all Internet access, has been intermittently blocked in Egypt during the crisis, news, video clips and images continue to spread around Twitter with the greatest urgency. In fact, Google today launched a voice-to-Twitter service specifically to assist Egyptian Twitter users wishing to act as citizen journalists.

The Egyptian Government completely shut down access to Social Media Sites!

What does all of this have to do with human resources or employment screening?  Well, here is where I get creative and tie it all in.  Fortunately (Unfortunately) companies don’t have the same powers as Egypt.  The CEO of a company might have the power to block Twitter, Facebook Etc. from their own internal networks but have no power beyond their corporate domain.  Organizations really have no power to control what an employee says outside of the workplace.  Yes, companies can create policies limiting what employees can say about their job, employer, workplace etc., but these policies are untested in a court of law.  Recently the National Labor Relations Board (NLRB) has taken exception to some of these policies.  Furthermore, there have been several cases of employees being terminated for writing about their employers, getting fired and then suing them.  Employers are not Countries, they can’t got the Egyptian route and just shut off access altogether.  Right now it’s the Wild West, everyone is creating policies but no one knows how to enforce them, or control them.  One thing we do know is that using these sites for background screening could pose a major violation of the Fair Credit Reporting Act (FCRA), Various Social Media Privacy Policies, Wire Tapping Laws and a slew of other Federal Laws, some dating back decades before the Internet was invented…..by Al Gore!

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Sure, we’ve done our fair share of railing against the use of social networking sites such as Facebook as part of the background screening process.  Evidently, most employers aren’t listening.  In fact, a 2009 Microsoft survey found that as many as 75% of U.S. employers are using this tool to help them make hiring decisions.

We’re not changing our minds on this one and this story that was published in the Washington Post only bolsters our belief that people are unfairly eliminated for things that are beyond their control.  In this story a job candidate was denied a job after one of his friends posted pictures of him drinking and smoking cigarettes. Legal activities, right?  The job seeker made sure that his profile was kept private, but unfortunately, his friend did not.  Fair?  See below.

Miranda Shaw, a manager at a leading consulting firm, is hiring for a senior analyst position. She has narrowed the field to two candidates, Rick Parsons and Deborah Jones, and must make her recommendation to the company’s human resources department immediately. Both candidates graduated from the same highly ranked business school that Shaw attended. Both boast appropriate work backgrounds and shone in their interviews.

However, Parsons is first in line for the job because of his leadership skills, reputation for tireless energy and great communication skills. Before making her final decision, Shaw decides to Google both candidates.

. . .

On one Facebook page, Shaw found an album of pictures showing Parsons drinking, smoking cigarettes and – in his words – “smokin’ blunts” with college fraternity brothers. The page belonged to Parsons’s friend, who had not enabled his privacy settings.

When Shaw Googled the other finalist, Jones, she found only work-related sites that listed Jones as an effective project manager.

Parsons’s online photos caused Shaw to rethink her choice and to grapple with the slippery boundaries between public and private life.

THE RESOLUTION: Shaw concluded that Parsons would not fit in with the company’s professional work environment and her team. She could not waste time or money on hiring the wrong person. Yet she wondered whether she arrived at her decision fairly. After all, Parsons had not offered the information willingly, and he had set the appropriate privacy settings on his own Facebook page. Also, Shaw had not disclosed that she would conduct a background check online.

THE LESSON: Many people do not realize the extent to which their friends and associates could harm their online reputations. For example, friends who post and tag photos with their name and online identity on Facebook and elsewhere may have much more open privacy settings. Whatever is publicly accessible becomes public information, no matter who uploads it. It is more efficient for HR professionals to conduct online searches than to conduct reference checks, so this is a growing dilemma for companies.

Before posting information and photographs on Facebook, remember that in the virtual world, our houses are made of glass. Every piece of data is permanent and stored in a digital archive. More than half of employers cite provocative photographs as the biggest factor in the decision not to hire.

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