Is it now negligence if you don’t do background checks on MySpaceTM and Facebook? “We’re not there yet for every job,” says attorney Joseph Beachboard, “but it’s getting there for sensitive jobs like installers and home care providers.”
Beachboard’s comments came at the recent Society for Human Resource Management (SHRM) Annual Convention and Exposition in New Orleans. He is a shareholder at the Los Angeles office of Ogletree Deakins.
Where Are Companies Looking?
Beachboard finds his clients looking at the following types of websites:
Search engines:
- Google
- Yahoo!®
Social networking sites:
- Facebook
- MySpace
- Twitter
- Classmates®
- Virtual worlds (sites where users create their own characters)
Rant sites
- Fthisjob
- Jobvent
hat Are the Issues with Internet Searches?
Beachboard offered several lawsuits as examples of the types of situations employers are facing.
A Delta Airlines flight attendant posted provocative pictures of herself in her uniform on company planes on her personal website.
The Arlington, Oregon, mayor posed for photos wearing lingerie and sitting on town fire trucks. The photos were discovered on the mayor’s MySpace page.
Can you stop workers from blogging about your company? Negative blogs and websites are a serious problem, but controlling them is tricky at best. Find out how to manage this threat at BLR’s August 19 audio conference, Employee Blogs and Websites: Protect Yourself Against the Business and Legal Risks When Workers Go Online.
“Cisco fatty” tweeted that “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” Cisco rescinded the offer. (Cisco Fatty was getting an information management degree, Beachboard points out.)
A librarian with the same name as the “Wii Fit Girl” (YouTube’s 3-million hit “Why Every Guy Should Buy His Girlfriend a Wii Fit”) had trouble getting a job because people thought she was the Wii Fit Girl.
Underlying these situations is an essential conflict between employee and employer expectations, Beachboard says.
- Employees expect that their “private” information won’t be used.
- Employers are searching for the best information to make decisions.
What’s the Potential Liability?
Although there are no federal laws prohibiting online searches for information about applicants and employees, there are some laws that come into play:
FCRA, the Fair Credit Reporting Act, requires certain notifications and procedures for credit reports conducted by third parties. If you engage a third party to conduct the searches, you must comply with FCRA.
NLRA (National Labor Relations Act) may also come into play if unions are involved. Websites and blogs about terms and conditions of employment may be “concerted activity.”
Discrimination statutes protect against discrimination on the basis of race, age, gender, etc. You are likely to get information about those factors during a search. Once you have the information, you are open to a claim that you acted based on that knowledge.
The Stored Communications Act (SCA) may also cover certain actions related to obtaining information.
State Laws Also Apply
Many states offer broader protections. And most states have common law privacy rights called “intrusion upon seclusion” and “publication of private facts.”
The Question of Balance
The question is this: Does the employer’s need for information outweigh the employee’s right to privacy?
The employer’s strategy is to show that need is high, while at the same time making the reasonable expectation of privacy low.
Negative blogging bringing you down? What can you do about employees who complain, demean, and demonize your company online? Find out at BLR’s August 19 audio conference, Employee Blogs and Websites: Protect Yourself Against the Business and Legal Risks When Workers Go Online.
Pros and Cons
Beachboard identifies the following pros and cons of doing Internet searches in the employment context.
Pros for doing the search
- It’s a critical decision.
- You may gain invaluable information about character.
- It’s far easier to avoid a bad hire than to get rid of a bad hire.
- “Failure to hire” suits are much less likely than suits over termination.
- It may help to avoid a negligent hiring claim.
Cons for doing the search
- Sites are rife with information impermissible to consider.
- Possession of information may taint an otherwise well-based decision.
- There is the possibility of making a decision based on incorrect information (like Wii Fit girl).
- You’ll increase the likelihood of litigation.
- You may generate bad publicity.
In tomorrow’s Advisor, we’ll see Beachboard’s eight keys for searching the Internet, and we’ll introduce a new audio conference on blogging and employee websites.
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Regarding your article; Background Checks on MySpace—Dangerous or Due Diligence?…as a current job seeker and former Human Resources Generalist, I can offer this comment:
As an HR professional, I see the need for an employer to know as much as possible for a perspective candidate, without crossing the privacy line, especially if they are looking to make an offer of employment. I would err on the side of caution and only resort to this type of ‘search/investigation”, -never. If there’s ever suspicion of any kind, at that point, I move on to the next candidate.
However, as a job-seeker I have no problem offering a link to my FaceBook or LinkedIn accounts as long as that perspective employer gives me a good –or- necessary reason or provides a disclosure statement on the background check. If during an interview I am asked; “do you have any –what might be considered- inappropriate posts or web pages we should know about?, I’m comfortable enough to answer such a question with a No.
In conclusion, as one decides to open and maintain a “public profile”, one needs to remember that a fatty of any kind, may not be acceptable forms of commentary or behavior. The expectations of a well based and respectable corporation will be looking for the same quality in a representative of their company.
Thank you.
-Maria
I am an employee of a Background Check company named Integrascan. The problem with social media is the access to anything you post. That makes it social. This has become a hot topic among the background check industry, you can find out much more about a potential applicant then before. The examples listed in this article are very mild compared to some of the searches we have conducted. Users of social media sites should treat the sites as a public forum, if you have something private and post it up for the world to see; you have no expectation of privacy. Many Background check companies have included social network posts as part of a Background Check. Therefore people take note, a background check is exactly what it implies.
Terry Sweet
Integrascan
If MySpace, Facebook, etc were pro-active, they would create and employer-search account that would provide access to certain information made “public” by prospective employees, but would mask items that are definitely illegal to consider (e.g. birthdate (age); pictures (race; ethnicity), religion, etc). Now considering that all of the legal/discriminatory information is shielded from consideration, an employer could choose not to hire someone based on their post that they got falling-down drunk or that they cheated someone out of money, etc. There would still be many of the pitfalls noted above, but at least some of the info that is known to contribute to biased hiring would be eliminated, thus decreasing the risk of lawsuits.
A number of the social databases listed in this article include a clause in their agreement of use that the content will not be used for commercial purposes. I suggest that screening applicants is a commercial use. Here in the UK we have strict privacy laws and I suggest that the use of these social databases for this purpose no matter how desirable could be a breach of the Data Protection Act 1998 which could mean a breach of the Human Rights Act 1998.
This is likely to increase the chances of litigation by the failed applicant.