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The Facebook Background Check: Using Social Media to Vet Candidates

An estimated 91 percent of employers use social media to aid in their decisions of who, and who not, to hire. While this practice is becoming increasingly common, employers should be aware of the pitfalls of seeking information about potential employees through Internet searches.
 
Q: What kinds of things might an employer learn about a potential employee through a social media source?
A: An employer can learn, for example, that a candidate demonstrates poor communications skills, has lied about his or her qualifications, posted inappropriate comments, trashed a former employer, or divulged corporate confidential information, any one of which could legitimately disqualify the candidate from further consideration. Conversely, an employer can discover that a candidate is creative, demonstrates solid communication skills, has received awards or accolades, or is well regarded or recommended by his or her peers.
 
Q: What should an employer consider when conducting Internet searches to learn about job applicants?
A: Despite the legitimate information an employer can discover about job applicants through social media and other websites, conducting such informal Internet background checks carries risks. First, information uncovered through Internet social media may be unreliable and unverifiable. Further, there is a genuine risk that an Internet search will disclose “protected” information such as age, sex, race, religion or medical information.
 
Q: How can information be “protected” if it’s shared on a public website?
A: Consider the following example: Jane Doe submits a job application to ABC Corp. The hiring manager types her name into the Facebook search bar. What happens if the search reveals that Ms. Doe belongs to a breast-cancer-survivor group? If ABC declines to interview Ms. Doe, or hires another candidate, it is opening itself up to a claim that it failed to hire her because it regarded her as disabled or because of her genetic information. Now, the company is placed in the unenviable position of having to defend its decision not to hire Ms. Doe. It may be very difficult for the company to refute a claim that the hiring decision had nothing to do with its discovery of her medical information.
 
Q: Can an employer require a job applicant to turn over a Facebook password as part of the hiring process?
A: Reports that some employers are requiring job applicants to turn over their Facebook passwords as part of the hiring process have been reported in the media, and the outrage against such a practice so great that some United States senators are calling for action to outlaw it. Three states—Maryland, Illinois and California—have already passed legislation banning it, and many other states (including Ohio) are considering similar legislative prohibitions. Facebook has also officially weighed in on this issue, via a post on its blog by its Chief Privacy Officer, which asserts that it is “a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.” 
 
As employers make decisions about hiring practices, they should consider broader questions such as: What type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and honor their employees’ lives outside of work?
 
Q: Assuming that most employers will not go so far as to demand social media passwords from job applicants, are there legitimate benefits to be gained from gathering information about candidates from Internet sources?
A: Yes. Despite the risks, Internet searches on job candidates hold value for employers, as long as they are done carefully. To minimize risks when doing Internet searches, employers should:

• Consult with an employment attorney to develop policies, procedures, and guidelines for the gathering and use of Internet-based information without conflicting with discrimination and other laws.

• Include on the job application a disclaimer stating that Internet searches may be conducted for publicly available information, either through sites such as Facebook, LinkedIn, and Twitter, or through the use of search engines such as Google and Bing. Obtain the applicant’s signed permission to conduct the search.

• Only conduct a search after making the candidate a conditional job offer.

• Consider using a third party to do the searching, with instructions not to disclose to you any sensitive or protected information that may be uncovered. This third party can either be a trained employee insulated from the hiring process or an outside vendor specializing in background searches.

• Make sure not to use Internet searches as the only form of background screening, but rather to use this information as part of a larger, more comprehensive background screening program.
 
10/8/2012
 
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Cleveland attorney Jonathan T. Hyman of Kohrman Jackson & Krantz P.L.L.
Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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