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Keep background investigations old school and stay off applicant Facebook pages!

April 16th, 2012  |  Published in Blog

Investigating an applicant’s background before hiring makes sense. For example, this helps ensure that employers hire individuals who are stable and well-suited for the job. Historically, employers used a variety of tools, including criminal history checks and reference checks to screen out applicants whose past conduct indicated future performance problems. Most recently, some employers are using Facebook and other social networking sites, and in some cases even demanding passwords for full access to an applicant’s account. This is a B-A-D idea. Practically speaking, one of the greatest risks of social media investigation is simply finding out too much information. Social networking sites can reveal race, age, religion, disability, military service and other information indicating membership in a protected class. Failing to hire an individual in a protected class after requiring access to a personal site makes defending a potential discrimination suit harder and more expensive. How can an employer prove that it did not actually use the information to which it demanded access?

Legislators have responded to the rising tide of public opinion against employers who demand access to social networking pages. On March 25, U.S. Senators Richard Bumenthal (D-CT) and Charles E. Schumer (D-NY) called on the EEOC and the DOJ to investigate the trend of demanding that job applicants turn over their passwords for social networking and email websites. In Schumer’s words, “Employers have no right to ask job applicants for their house keys or to read their diaries – why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?” State legislators are also taking up the cause, proposing legislation that generally makes it unlawful for employers to ask any prospective employee to provide a username, password, or other related account information in order to gain access to the individual’s social networking website. States considering such legislation include California (SB1349), Illinois (HB3782), Michigan (HB5523), Minnesota (HF2963), New York (SB6938), and Washington (SB6637). Maryland (SB433 HB964) has already passed similar legislation.

Other organizations are also responding to the trend. On April 10, the National Association of Colleges and Employers (NACE) issued its position that employers should not require or request that job candidates provide login information to personal social network accounts as a condition of employment. NACE represents the interests of nearly 8,000 professionals who recruit and hire college graduates for their work forces and career services professionals who counsel college graduates in the job-search process. According to Marilyn Mackes, NACE executive director, “NACE’s position is that this practice violates ethical standards.” In addition, Facebook has announced that it may consider legal action when employers require employees or job applicants to provide access to their private Facebook passwords.

If public opinion, potential lawsuits, and legislators proposing bills against accessing the social networking sites of applicants is not enough to make an employer go old school in background checks and other pre-employment inquiries, there is still the fact, which anyone who has used Facebook knows, that the majority of the information on there is irrelevant to job skills and in many cases outdated.

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