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.
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.
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.