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The Latest Frontier for Pre-Employment Screening


In David Yudelson’s article in this edition of the Client Adviser, he talks about the “Facebook Generation.” What I find fascinating is that Facebook users are no longer just teenagers or “young people.” Adults of all ages are creating their own Facebook pages and are having a great time finding and connecting with old acquaintances and staying in contact with family members. Facebook and other social media sites have also become major professional resources for many individuals and businesses. With unemployment rates continuing to skyrocket, applicants are anxious to use whatever platforms they can to promote their credentials and to distinguish themselves from the pack. If a user’s expectation is that the “world” may be viewing his or her Facebook page, then the user needs to be very thoughtful and vigilant about what is on that Facebook page, so as to fully utilize social media as an effective marketing tool. But what if a user’s expectation is just the opposite? What if Facebook, Twitter, YouTube, etc. is being used strictly for social, recreational, or personal interest purposes? What if a friend posts on Facebook an old college picture of someone engaging in conduct that this individual would not want their children, their employer or, worse yet, the authorities, to see? Should potential employers be able to hire a private company that specializes in researching social media sites in particular in order to get a better look at who they might be hiring? According to the Federal Trade Commission (FTC), the answer is “yes.”

The FTC oversees the Fair Credit Reporting Act (FCRA). The FCRA governs how background checks must be conducted by employers if the employer is going to pay a background check company (i.e., consumer reporting agency) to conduct the background check and to provide a report. Recently, the FTC dropped its investigation of a company called Social Intelligence Corporation – a company that specializes in conducting internet and social media background checks. The FTC’s investigation was aimed at determining whether this company was complying with the FCRA. The FTC concluded that it was operating in compliance with the FCRA and, as long as it continued to do so, this type of background check is acceptable. But why would employers pay for this service instead of simply conducting their own internet searches? Arguably, it is more fair to the applicant if a third party conducts the search, so that only job-related information will be reported to the employer (such as fraudulent or criminal activity, racist comments, or pictures exhibiting violent or other deviant behavior), as opposed to personal data that is neither relevant nor lawful to consider (such as the applicant’s race, religion, or age). Also, a company that specializes in this type of work is likely going to be better at it than an amateur internet surfer.

How are applicants protected? If an employer uses a background check company and elects to withdraw a job offer based on the results of the background check report (and, in particular, the social media information that has been obtained), the employer must advise the applicant as to why the job offer is being withdrawn and provide the applicant an opportunity to explain the situation. If the employer does not find the explanation particularly convincing (based on its own, subjective criteria), then the decision to withdraw the job offer stands.

So, for young and old alike who are texting, tweeting, and facebooking, “forewarned is forearmed.” Please do not hesitate to contact us if you have any questions relating to use of internet searches as part of pre employment screening efforts.

By Margaret C. Hershiser

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