employeescreen University Guest Article: Background Checks and the Internet
February 23, 2009
Labor and employment attorney, Jackie J. Ford of Vorys, Sater, Seymour and Pease LLP recently published an article on MarketWatch about the problems employers can face by using information found on social networking sites in the background check process. We liked it so much, we asked her if we could publish it on employeescreen University and she graciously accepted our invitation. See excerpt below.
Why Employers Should Reconsider Facebook Fishing
Various studies suggest that upwards of 40% of employers have trolled Facebook and other social networking sites for information on potential hires — and that when they find negative information on these sites, more than 80% of the employers factor that information into their hiring decisions.
Given how common the practice is, are employers well advised to use whatever information they can, from wherever they can? Not so fast.
While there is no specific prohibition on checking an applicant’s Facebook page, employers should carefully weigh the potential hazards before entering these waters. Here are four of the biggest traps for the unwary:
- State and federal discrimination laws discourage “too much information.” Let’s say an applicant’s Facebook page includes heartfelt descriptions of his ongoing battle with cancer. Whether this is the sort of information you meant to find or not, you’ve now seen it — and when the applicant is turned down for the job and files his disability discrimination claim against your company, you’ll have to explain how and why the medical information did not figure into your decision-making. That’s the tough thing about Pandora — it’s nearly impossible to put her back in the box.
- The jury is still out on whether a Facebook search may be subject to limits on background checks. If you use a third party service to conduct certain types of background checks, the Fair Credit Reporting Act (FCRA) requires that you give prior notice of the check to the individual being investigated. In the Facebook context, few employers want to do this because, among other things, they don’t want to give the applicant time to remove offensive material before the search begins. While it’s far from clear that the FCRA applies to Facebook fishing, most of us would rather avoid being the test case defendant in an FCRA lawsuit. In addition, some states are enacting their own “FCRA plus” laws which, like California’s, require consent from the applicant even if you don’t use a third party to do the search.
- Some states prohibit denying a job to someone because of off-duty conduct that is not illegal. We’ve all heard the horror stories of Facebook postings that take on a life of their own — the photos of beer guzzling, the boasts about sexual escapades, or the just plain boorish stuff that seems funny to your college Facebook friends but decidedly unattractive to a prospective employer. In some states, that information is off-limits for hiring decisions — unless, of course, you can show a direct link to the responsibilities of the job itself. In West Virginia, for example, an employer can’t deny a job to someone purely because the person is an off-duty smoker; in New York, “consumption of legal products” is protected activity.
- Shockingly, not everything on Facebook is true. It’s one thing to rely on information an applicant directly provides to you. It’s another thing to rely on information posted by the applicant or others on a website. A Facebook page, like every other public forum, can be the voice of puffery, trickery, and, yes, fakery. In short: browser beware.