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Employers Must Manage Risks of Using Internet for Employment Screening Background Checks of Job Applicants

Guest post by: Lester Rosen

Article Overview: In recent years, employers have increasingly 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 network sites such as Facebook and Twitter, and various blogs, posts, and videos. What is overlooked in the rush to use these web sites for employment screening are the legal risks involved with conducting so-called Internet background checks, risks that include issues with discrimination, credibility, accuracy, and privacy.

Employers Must Manage Risks of Using Internet for Employment Screening Background Checks of Job Applicants

In recent years, employers have increasingly focused with laser-like intensity on using the plentiful amount of information found on the Internetto conduct employment screening background checks on job candidates using search engines like Google, social network sites such as Facebook and Twitter, and various blogs, posts, and videos. What is overlooked in the rush to use these web sitesfor employment screeningare the legal risks involved with conducting so-called Internet background checks,risks thatinclude issues with discrimination, credibility, accuracy, and privacy.

• Discrimination: When using Internet for employment screening, employers may be accused of disregarding candidates who are members of protected classes by viewing online profiles of peoplethat contain information aboutprohibited criteria such as race, creed, color, nationality, sex (including pregnancy), religion, marital status, medical condition, disability (including AIDS), sexual preference, and age (40+). All of these are aspects of job applicants that may be revealed by a search of theInternet and could result in Too Much Information (TMI) for employers.
• Credibility: Employersshould make sure what they see online actually refers to the 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.
• Accuracy: Another issue is whether the statements made are even true. In other words, 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 accurate, up-to-date, authentic, and if it even belongs to or applies to the candidate in question?
• Privacy: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, 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.

Despite these risks, employers seem intent on using search engines and social media for employment screening background checks. A 2009 survey conducted by job networking site CareerBuilder.com of more than 2,600 hiring managers found 45 percent of employers used social networking sites to research candidates. The survey also revealed that 35 percent of employers rejected job applicants based on what was uncovered on social networking sites. Of these 35 percent:

• 53 percent cited provocative/inappropriate photographs or information.
• 44 percent cited content about drinking or using drugs.
• 35 percent cited bad-mouthing of previous employers, co-workers or clients.
• 29 percent cited poor communication skills.
• 26 percent cited discriminatory comments.
• 24 percent cited misrepresentation of qualifications.
• 20 percent cited sharing confidential information from a previous employer.

To minimize the legal risks of using the Internet for employment screening, employers should consider using the following stepswhen using search engines or social network sites for background checks:

• For employers wanting to use the Internet to screen a candidate, 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.
• In addition, 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.
• Another method employers may use is to have a person in-house not connected to any hiring decisions review social network sites, in order to ensure impermissible background screening information is not given to the decisions maker. 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 job 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. The bottom line is that employers should proceed with caution, especially when it comes to social network sites, before assuming everything is fair game online or face potential legal landmines that could destroy their business.

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Article Tags: background check, employment screening, Facebook, Google, Internet, social network, Twitter



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