Are you “MySpacing” and “Facebooking” your applicants? Employers are wondering whether reference checking should include visiting Web 2.0 “relationship” pages. Alas, the advice is mixed.
Should your reference checks on job applicants include looking at their “relationship” Web pages, such as those found on “Facebook” or “MySpace”?
Some experts say yes. It’s your job to find out everything you can about candidates, and checking their Web pages should be routine.
Others counter that such checks may be an invasion of privacy, are likely to turn up information you really don’t want (such as information about disabilities and appearance), and may not even actually be the candidate’s posting.
What to do? Here’s the opinion of George Lenard, writing in the CollegeRecruiter.com blog. Lenard, originator of George’s Employment Blawg, is managing partner of the St. Louis-based law firm Harris, Dowell, Fisher & Harris LC.
There are several issues to be considered, Lenard says, including discrimination, invasion of privacy, and terms of service violations.
Discrimination
Discrimination is one possible charge you could face in response to an adverse employment decision based on website information. This is especially true if you conduct searches only on certain types of applicants and, specifically, those in protected classes. So, for example, searching only for those with certain ethnic or racial backgrounds, or searching only for those of a particular sex or age, would be unwise.
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Of course, even if you consistently search on all candidates, you still could be accused of racial bias if you made a race-based decision after learning a candidate’s race from looking at his or her Web page, or if you appear to have made such a decision by, for example, only hiring from a single racial group after viewing these pages.
Sexual orientation may also be readily disclosed on a website, and discrimination on that basis is prohibited in many jurisdictions.
Privacy
Are relationship pages “private areas,” like an applicant’s home, where bosses may not go without permission? Some have said so.
Lenard, however, doesn’t think that privacy suits will get very far because of the requirement for a “reasonable expectation” of privacy. After all, how reasonable is that expectation if thousands of people can access your page? However, he notes, there could be a case made if 1) the person believes that the site is private, 2) the site promotes itself as private, and 3) especially if the company used nefarious means (such as using a false identity) to gain access to the site.
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Terms of Service Violations
Lenard sees slim possibilities for cases based on violations of the terms of service agreements that site visitors must agree to. Nevertheless, there is some possibility of problems in this area, particularly if the company enters without proper authorization.
FCRA
There could also be Fair Credit Reporting Act (FCRA) ramifications if the website information is obtained by a third party. FCRA would not prohibit the use of the information, but would require the employer to disclose that the information was the basis for the employment decision.
What should you do on the issue of checking relationship pages? We’ll share some thoughts on that in the next Advisor.
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Interesting comments. With more and more organizations implementing on-line application systems, it would seem a worthwhile thing to do. But, while those may be sites a lot of people think HR SHOULD be checking, the liabilities are too great as noted, especially in the public sector. Our company’s firewalls prevent our viewing those pages anyway, so it’s a moot point for us.
It’s commendable to talk about being concerned about overstepping the potential discrimination boundaries. But there are some companies that talk about it and then violate many anti-discrimination laws in their daily practices. So I’m not willing to buy into that argument in this instance.
Furthermore, social networking sites are becoming a blend of purposes. They are evolving into informal networking venues where you will find humor (the human side of the person), social and recreational information, relationship details from both job seekers as well as executives, and organizations. All of this in addition to the traditional “looking for a job” info.
I’ve not seen someone intentionally post their disability. But the images that are posted leave you wondering what to do about the checking. It seems going to the social networking sites for background information is the step done *after* there’s been several screenings and at least one face-to-face meeting. In that case, there will be no surprises and the opportunity for pre-selection bias is eliminated.
As to privacy, all users of these sites know that they are very public. Additionally, there are privacy settings that allow the user to restrict access to certain information.
While I wouldn’t want to use these Facebook/MySpace sites for initial screening, I believe they, taken with other sites such as Ning, Ziggs, LinkedIn, and so on, simply add to what’s already been found.
Should we avoid reading an applicant’s blog or website, even writing samples from other sites, because of potential privacy or discriminatory concerns? I think not. Those venues are public because the person wants to be seen and they consider them extensions of the full person — available for consideration.
If web sites are included as references in the resume or the person offers the profile background during the interview, these should be considered as referable information. If the profile is not offered as part of the resume or background, the content should be considered private until offered.
Using Facebook and MySpace to check on applicants is new ground and I admit I’m struggling with the issues of ethics and privacy. On the one hand, anything that is posted on the internet by an individual, of course, is no longer ‘private.’ But using a social network shouldn’t jeopardize a user who’s expressing an opinion or a facet of his/her personality. One person’s idea of playful may be another person’s idea of shocking. On the other hand, using a business and professional network offers opportunities for a job applicant to hide behind titles and descriptions, and may allow falsification or exaggeration of qualifications. It’s a tough one. I suspect the acceptability of this practice will morph and evolve like everything else on the internet. Maybe for the better. Do it to one, do it to all is what I use for general guidance and compliance. So for now, I would exercise great caution using social networks to find out about applicants.