“What harm is it?”
Ted L. Moss, CPP
Social networking; it’s fun for some, annoying to others and still
others don’t have a clue what it is. I was one of the annoyed ones.
Of course I also thought the Internet was a fad, much like CB
radios! Who has time to sit at the computer and tell everyone about
every little detail of their life and for Pete’s sake why? Plus
uploading every picture of your dog, cat, baby and Aunt Martha’s
surgery scar is weird. I was a dissenter, part of the resistance “Viva
La Legal Pad!” was my motto.
I must admit now that I am amongst the converted. I have
reconnected with old friends from high school, business colleagues
and an old girlfriend or two. It is fun to live vicariously through
others. I have been on vacation, to the bar, weddings and in their
living room through their photo albums. I know the names of their
kids, dog, cat and annoying neighbors. I see their political
philosophical and religious views from far left to far right. God I
know a lot of wacko’s! Admittedly, there are things I have learned
that I would rather not know. It has been enormously satisfying
however, to see how my old and current friends are fairing and to
just make a funny comment or two about their life. Sometimes it
brightens someone’s day to know that old friends still care.
In my business of employment screening there has been a lot of
discussion about using social networking when conducting a
background check. The practice seems to be becoming more
popular either as a preliminary screening tool prior to an interview
or subsequent to an application and interview. It has been said that
if Facebook were a country, it would be the 4th largest in the world.
It seems to make good sense then, to check sites like Facebook for
insight into a candidate. Social media checks however, are fraught
with pitfalls if examined a little more closely. In this report I will
examine the value and risk involved in utilizing social media and
networking as sources of information as part of the background
check and hiring process.
Consider this for instance:
Title VII of the Civil Rights Act of 1964 (Title VII), prohibits
employment discrimination based on race, color,
religion, sex, or national origin!
How does this affect social networking checks? Well, could an employer
discern from a MySpace or Facebook profile information such as race?
How about national origin or sex? You bet they could. The profile photo
alone allows persons to easily infer race, sex and sometimes nationality.
Groups they belong to can distinguish national origin and religion.
So what does this mean? Who cares if I know a candidates personal
traits and lifestyle up front? OK, let’s suppose you get a resume and
decide to Google that person and find their Facebook or LinkedIn page.
You notice certain things about them and make notations on the resume.
“Oh they are single!” “That’s great because I need someone committed to
the job!” “Better yet they are a Blue State kind of person…I can’t stand
those Red State guys!” Now is that useful? Of course it is! We all
admittedly are biased toward those with like thinking. Similar outlooks
and philosophies help us integrate a candidate into our corporate
culture. The sinister part of utilizing such a practice is that it is most
likely a discriminatory method of evaluating prospective employee’s
qualifications. The practice of pre-screening with social media gets
exponentially complicated as one starts to delve into the possibilities a
Discriminatory Practices Are Prohibited by Law! Under Title VII, the
ADA, GINA, and the ADEA, it is illegal to discriminate in any aspect
of employment, including:
hiring and firing;
compensation, assignment, or classification of employees;
transfer, promotion, layoff, or recall;
use of company facilities;
training and apprenticeship programs;
pay, retirement plans, and disability leave; or
other terms and conditions of employment.
Discriminatory practices under these laws also include:
harassment on the basis of race, color, religion, sex, national
origin, disability, genetic information, or age;
retaliation against an individual for filing a charge of
discrimination, participating in an investigation, or opposing
employment decisions based on stereotypes or assumptions
about the abilities, traits, or performance of individuals of
a certain sex, race, age, religion, or ethnic group, or
individuals with disabilities, or based on myths or
assumptions about an individual's genetic information; and
denying employment opportunities to a person because of
marriage to, or association with, an individual of a
particular race, religion, national origin, or an individual
with a disability. Title VII also prohibits discrimination
because of participation in schools or places of worship
associated with a particular racial, ethnic, or religious
Notice, the fact that decisions based on stereotypes or assumptions can
land an organization in, “Hot Water” is pretty clear. It seems obvious that
Social Media Sites are a Pandora’s Box of information which in
untrained hands could lead to more trouble than they are worth!
It seems like people, especially Congress, have been making it harder
and harder for business owners, managers and HR professionals to hire
the right people for the right job. I have spent almost 30 years in the field
of retail Loss Prevention, Industrial security, Private Investigations, Law
Enforcement and Employment Screening. In that time I have seen a
multitude of laws passed that either restrict or flat out prohibit what tool
employers can use to select the people they need to do the job. It used to
be that a person’s past associations; character, work ethic, honesty and
standing in the community were expected to be a measure which an
employer would use to determine job suitability.
One commonly used method of verifying a person’s character in years
past was the polygraph test. Yes, a lie detector! I had one of those, it
was called my Mom; she was uncanny in her lie detection skills.
The polygraph test however was outlawed in 1988 by The Pre-
Employment Polygraph Protection Act. Without a Mom or a polygraph to
turn to, employers began conducting background checks on a broad
scale. Congress reacted with more laws! The FCRA (Fair Credit Reporting
Act) and The DPPA (Drivers Privacy Protection Act) to name just two give
applicants and consumers very specific rights when it comes to what
information can be used, how and by who for employment background
The age of privacy had begun and was only going to get worse. With the
advent of the internet employers could get more information quicker and
at a cost effective price. This blessing of quick and easy information
however has led to its misuse. Mostly unintentional, the misuse of data
underscores the need to understand how and when it can be used. As a
result a slew of employment screening services have led to the explosion
of a burgeoning employment screening industry. These providers of
vetted, accurate and legally compliant data are usually the best bet when
dealing with so many complex issues.
What other Laws might apply?
Federal Equal Employment Opportunity (EEO) Laws
What Are the Federal Laws Prohibiting Job Discrimination?
Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits
employment discrimination based on race, color, religion, sex, or
national origin; we have covered this previously!
the Equal Pay Act of 1963 (EPA), which protects men and women
who perform substantially equal work in the same establishment
from sex-based wage discrimination;
the Age Discrimination in Employment Act of 1967 (ADEA), which
protects individuals who are 40 years of age or older; Do you
think age is available on a social media site?
Title I and Title V of the Americans with Disabilities Act of 1990,
as amended (ADA), which prohibit employment discrimination
against qualified individuals with disabilities in the private sector,
and in state and local governments; Interesting point, could a
hiring manager or recruiter assume a disability from a
photo on Facebook?
Sections 501 and 505 of the Rehabilitation Act of 1973, which
prohibit discrimination against qualified individuals with
disabilities who work in the federal government;
Title II of the Genetic Information Nondiscrimination Act of 2008
(GINA), which prohibits employment discrimination based on
genetic information about an applicant, employee, or former
employee; What if your applicant discusses a genetic
diagnoses on their media page?
The Civil Rights Act of 1991, which, among other things, provides
monetary damages in cases of intentional employment
The U.S. Equal Employment Opportunity Commission (EEOC) enforces all
of these laws.
Where do you go from here? Should I conduct social media checks? If so
when; before or after hire? Well don’t fret, I have the info! A recently
conducted survey shows that nearly 1 in 2 companies are doing their
online due diligence for prospective job candidates, this according to
research firm Harris Interactive, who was commissioned by
CareerBuilder.com and surveyed 2,667 HR professionals, finding that
45% of them use social networking sites to research job candidates, with
an additional 11% planning to implement social media screening in the
very near future. According to the survey employers have found both
negative and positive information which affected their hiring decision. So
clearly there is a growing acceptable trend in this area.
There is no legal precedent to date which clearly defines social
networking sites as either public or private. If an applicant posts on a
public forum their life for others to see it seems reasonable to consider
that information tantamount to a public record. According to a recent
article in The National Law Review, Management-side lawyers are
warning employers about the hidden dangers of LinkedIn, the popular
business networking site that posts recommendations for job candidates.
Specifically, attorneys are advising employers to be wary of giving glowing
remarks about employees on the site because the employers risk having
the recommendations used against them in a discrimination or harassment
suit. Baldas July 2009
The article maintains that the popular business networking site LinkedIn
which has recommendations posted by previous employers and or
supervisors is fertile ground for discrimination suits.
Plaintiffs' lawyers, they fear, are scouring these sites, looking for evidence
to dispute firings, as most LinkedIn recommendations are positive. So if a
supervisor claims that an employee was let go due to performance
problems but gave a rave review about him or her on LinkedIn — that, the
lawyers stress, won't look so good.
"That could prove problematic if a plaintiffs' lawyer is mining these sites,"
said Wayne E. Pinkstone of the Philadelphia office of Atlanta's Fisher &
Phillips, who represents employers in work place disputes. "The whole
social networking issue is something that's on our minds as management-
side employment lawyers. And because of the explosion in [LinkedIn's]
use, we suspect at some point that we're going to see its use pop up in
litigation....It's probably only a matter of time."
Pinkstone, for example, has handled several wrongful termination lawsuits
in which an employer claimed that an employee was let go due to job
performance issues, but the employee claimed it was discrimination- or
harassment-related. To bolster their argument, he said, the employee can
now turn to LinkedIn and say, "and here's the proof. Baldas July 2009
This article demonstrates that the use of these sites is problematic at
best and at some point in the future asking for a legal precedent to be
set. One aspect of this argument might be that if this information is with
us then how can we use it responsibly? Utilizing the information gleaned
from a social media site on the front end, that is the pre screening or pre
interview phase, might be the bigger can of worms. However if one were
to advise the applicant in writing prior to checking any site, as part of the
background authorization process, regarding the full scope of inquires to
be made then the risk of reprisal might be mitigated. Disclosure is the
key when it comes to employment screening.
The FCRA which specifically deals with “Consumer Investigative Reports”
is fairly clear that subjective information can be used to judge candidates
job worthiness. Disclosing to that candidate what you will check, how it
will be used and providing notification of any adverse demonstrates a
reasonable compliance with the act. In the absence of any specific
legislation the test should be;
Is the information obtained relevant to the job at hand?
Does it create a disparate impact or discriminatory standard?
Have I notified the applicant adequately of my intentions and
Is there a dispute mechanism in place for the applicant to rectify
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