Many you have seen the recent CareerBuilder study which concluded that 1 in 5 employers is using Social Networking sites such as MySpace and Facebook as part of their employment background screening process. Perhaps you’ve seen the article Cheezhead posted about this study which featured commentary from my business partner, Jason Morris entitled ‘background checks on social networks ‘a horrible practice’.
I’ve written extensively on this topic, mostly agreeing with my colleague that this practice is a bad idea for employers. Surprisingly, no one has questioned our motives in this stance nor suggested that we’ve taken this stance for economic reasons. Are Consumer Reporting Agencies (background screening providers) scared that these sites will threaten our revenue stream? In a word, no.
Here’s the answer. Consumer Reporting Agency’s that are concerned about best practices don’t offer their services to trample on consumers’ rights or to expose their clients to unnecessary risk. There is no way to verify the accuracy of the information that is posted on these sites, nor is there a way to confirm that the applicant actually posted such information. Just look at the stats in the CareerBuilder survey. In just looking at the top three reasons employers said they have rejected candidates based on their social networking site, I offer the following.
- 41% Rejected candidates because there was mention of alcohol or drug use. I agree that admitted drug use should be of concern to employers, but how do they know who posted such information and if it’s true? Also, the last time I checked, the drinking alcohol was legal in this country. A Substance Abuse Test might be a more legally compliant and effective way to determine employment eligibility.
- 40% Rejected candidates due to provocative or inappropriate photographs. If we are savvy enough to use technology to search for an applicant online we are certainly smart enough to know that pictures can be modified by anyone these days. If an employer found an objectionable picture, how can they make sure it wasn’t photoshopped?
- 28% Rejected candidates due to poor grammar in online postings. As far as communication skills are concerned, social networking sites are intended for just that: Social Networking. How one communicates with friends and how they might do so at work are two entirely separate matters.
I could continue through the list, but you get the gist.
None of this addresses the inherent risk of all types of discrimination claims that can arise or how such information can be evaluated consistently across the boards.
This all leads to my point. While untested to date, we are going to see significant negligent hiring and discriminatory hiring practices claims arise from the use of these sites when making employment decisions. It is our job as a CRA to reduce our clients’ exposure to risk, not increase it.
Still wondering why I am opposed to this practice? Wait until the litigation starts. Trust me, it’s coming.
Popularity: 19% [?]
September 12th, 2008 at 4:38 pm
Just one question – how do people *know* they’ve been turned down because of what an employer found online? I’d imagine HR isn’t going to tell a candidate that’s why they weren’t selected, especially if what they found (inappropriate photos or drug confessions) would be a touchy subject anyhow. All I know is, I google myself periodically to make sure I know there isn’t anything out there – any smart job seeker should do that.
September 12th, 2008 at 9:34 pm
Theresa, I had the exact same thought. The lawsuit would have to be about something–discrimination, violation of privacy, etc. In any case the hypothetical plaintiff would have to find out why they weren’t selected. Of course there HAVE been cases where the employer did something stupid and let slip why they didn’t select the person, and it gets back to the candidate. That’s the only way I see this happening.
September 13th, 2008 at 5:00 pm
“Send lawyers, guns and money”, the internet has hit the fan.
It’s interesting to me that if we use publicly available information in our business decision process, it’s called due diligence. If we use publicly available information in the selection and hiring process, we’re trampling on “consumers’ rights”, exposing our companies to “unnecessary risk”, and facing mountains of litigation due to “discriminatory hiring practices” and “negligent hiring”.
Of course we could hire the young lady in the picture while possessing credible, publicly available information indicating serious behavioral problems. I can never remember if being a lush is protected under Title VII of the Civil Rights Act. Anyway, so what if she enjoys a few too many and regularly passes out on the bathroom floor. We’ll be secure in the knowledge that we have a proper, lawful hiring practice. And then when she shows up late 70% of the time, has repeated performance issues, creates dysfunctional relationships throughout the company, we’ll eventually terminate her employment for legitimate business reasons. Better send some more “lawyers, guns, and money”.
September 14th, 2008 at 12:42 pm
The litigation isn’t coming. It is already here. I’ve been contacted by attorneys looking for expert witnesses in these cases.
One attorney represented a candidate who was rejected because of information contained on her MySpace page. Another attorney worked for a state attorney general’s office and was representing his state’s Department of Education. They were defending a lawsuit in which they were accused of wrongful termination of a teacher who had posted controversial information to her MySpace page.
What we haven’t seen yet are any of these cases go all the way through the trial state and then to a court of appeals where a written decision gets issued. Once that happens, then you’ll see courts across the country citing the appeals court decision a precedence and more attention will be paid to the legal issues surrounding employers using social networking sites as part of their background checking processes.
September 15th, 2008 at 1:16 pm
I have had a few students at the University of Minnesota tell me they were sort of told that they did not get a job or internship because of material found on the Internet.
Not told directly but strongly inferred and in one case it was suggested that the recent grad make their profile private.