Could You Survive a Social Media Background Check?
The Legal Intelligencer
September 27, 2011
Image by Benjamin Reid
As of September 2011, the U.S. Bureau of Labor Statistics reported that 14 million people are unemployed. At this rate, an employer can easily receive hundreds of responses to a single job posting. While a large applicant pool certainly gives the employer a wide variety of choices, it also makes background checks an important tool to be able to choose the most qualified candidate.
Most job applicants are familiar with being asked to sign a waiver so that the prospective employer can run a credit report, which includes information about an employee's credit-payment history and other credit habits from which the employer might draw conclusions about the applicant. A criminal background check, particularly for jobs where an employee will work with children, the elderly, or people with disabilities, is also routine.
While the latest background screening tool -- the social media background check -- is considered new, it has actually been in use for quite some time. Almost all employers have been doing some sort of informal background checking on their own and they rely on this information for recruitment purposes. This means that prior to an applicant being called for an interview, chances are that someone has performed a "Google" search on the applicant on behalf of the employer, looking for Facebook, MySpace, Twitter, and LinkedIn pages, as well as blogs and other accounts. No law officially prohibits employers from searching social networking sites while conducting their own background checks of job applicants.
Some legal experts warn employers that if they turn to these sites to find out more about potential employees, they need to be aware of potential federal and state discrimination claims and invasion of privacy claims. Hiring managers are not supposed to use social media searches to make hires based on age, religion, disability, race, and gender. If employers search the internet for general information about a potential hire, it could lead to inadvertent discrimination based on characteristics that, by law, should not be considered as part of the hiring process.
As of May 9, 2011, employers have the option to utilize the services of a background check company that has the approval of the Federal Trade Commission. The FTC-approved Social Intelligence Corporation, a California based company, is a consumer reporting agency in compliance with the Fair Credit Reporting Act. As a consumer reporting agency, Social Intelligence Corporation can issue legal background checks "because it assembles or evaluates consumer report information that is furnished to third parties that use such information as a factor in establishing a consumer's eligibility for employment."
Social Intelligence scours the internet for everything prospective employees may have said or done online in the past seven years. The company then assembles a dossier with examples of professional honors and charitable work, along with negative information that meets employer predefined criteria: online evidence of racist remarks; references to drugs; sexually explicit photos, text messages, or videos; flagrant displays of weapons or bombs; and clearly identifiable violent activity.
Although Social Intelligence maintains a consumer report for seven years, the company states that data will not be reused and that information in an applicant's file will be updated when pictures are removed from social media sites. The company further provides that future employers who run searches through Social Intelligence will not have access to the removed materials.
As with an employer's request to run a credit check or criminal background check, Social Intelligence also requires applicants to sign a waiver that gives permission to perform a social media background check in accordance with FTC regulations. It is important to note that employers who turn to third-party screening companies such as Social Intelligence to monitor and report on a potential employee's social networking activity protects the employee's rights under the FCRA. If employers themselves monitor an individual's internet activity, the individual has no rights under the FCRA.
Does this make you wonder if you would pass a social media background check? To improve your chance of passing, it is important to research your own background before going through the job-seeking process. Run a Google search on your own name. You may be shocked to see what comes up. Make a list of questionable photos, comments, e-mails, and personal information that comes up, along with where you found it for future reference. After you have surveyed it all, take action on each one.
Change your privacy settings on sites such as Facebook or MySpace so that only close friends and family can view your personal information. Then create a "limited access" list for people you may not know very well (or at all), and for co-workers or potential employers who have sent you a friend request and put you in that awkward position of having to either decline (and offend them) or accept (and have your whole private life on display). Go through your list of friends and see who should not be there at all and who needs to be moved to your "limited access" list. A good rule of thumb is if you do not know the person in real life, you do not need to friend them on Facebook.
Next, go through your photos, not just on Facebook, but even online photo sharing albums such as Shutterfly or Snapfish that you do not think anyone else can see. Remove anything that is questionable. Questionable material can include any photos where you are dressed just a little too skimpily, as well as anything that makes reference to drugs, firearms (even if you own them legally), underage drinking, and even smoking. Any photos that portray you as immature, such as photos of you giving the middle finger or wearing T-shirts with inappropriate language, should also be removed.
Self-censor your posts from now on. Do not write any comments or status updates that use inappropriate language or language that can be construed as racist, sexist, offensive, or even culturally insensitive. If you are looking for work, also steer clear of posts that are overly religious or political. Some potential employers will view status updates simply to see the types of things you talk about on your Facebook page, and even if they do not find anything inappropriate per se, they may be turned off if you seem immature.
Re-evaluate your online "groups." Steer clear of any groups that could be construed as offensive. If you belong to a group like "This Is America. I Shouldn't Have to Press 1 for English," or "Dora the Explorer is sooo an Illegal Immigrant," it goes without saying that you should remove yourself immediately.
If you blog, re-read your entries from the perspective of a potential employer. Remove or edit postings that could harm your job-seeking efforts. Obviously, there is no need to remove web content that shines a light on your positive achievements since a personal website or blog that highlights your good deeds could benefit you.
Social networking sites are here to stay, so employers and employees need to follow some basic guidelines. Negative credit reports, falsified employment history, and an arrest record can be cause for concern for prospective employers.
However, using incorrect information or using correct information in an improper or illegal manner when making hiring decisions can violate the legal rights of applicants and result in costly litigation. Employers should ensure they have fully researched the most current laws regarding background checks prior to initiating such practices, and they should train recruiters and hiring managers to conduct interviews and background inquiries in compliance with the law.
Vivian Luckiewicz is a corporate paralegal with The Children's Hospital of Philadelphia and has more than 25 years' experience in business and securities law, corporate governance and regulatory compliance. Luckiewicz is a graduate of Peirce College and sits on the board of directors of the Philadelphia Association of Paralegals.
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