Social Media use in background checks

Scenario: I am a firefighter candidate. During the oral interview, one of the panel members asked me for my user name and password for my social media sites. Can the employer as for that information and for what purpose?

Discussion: With the liberal use of social media sites by millions of users, are social media sites fair game for your employer to search your social media sites for insight into your activities to determine your eligibility as a candidate? Some employers seem to think it does.

The first thing you may be thinking when you hear this is, “oh no, what did I put on those sites and I am not interested in having my new employer see those party pictures while I was in college or on that fishing trip”.

This author urges fire department’s to do a background check (among several other processes) on all firefighter candidates to ensure the firefighter candidate has no “skeletons” in their closet that may lead to a termination or cause legal jeopardy for the department. There are many tools at the disposal of the fire department to obtain background material on the candidates to include driver’s license check; criminal record check; military record, former employers and other similar avenues.

Today, it appears that everyone is on a social media site; if not one but many. Some of the sites include: Facebook, Twitter, YouTube, Google+, Linkedin, Tumbler, Instagram and Flickr to mention a few. Many times the organization will do a simple search of your name without your permission or hire an outside resource to look at those sites to determine your eligibility for hire as part of the background check.

TAKE THIS TEST - Google your name to see what pops up. Probably several different sites that include most, if not all of the above referenced social media sites. You are out there in the virtual world and hopefully your “profile” is clean.

Back to the question of the request for your username and password; due to abuse by the employers and legal questions arising related to the use of social media for background checks, there are newly created laws in many States that prevent the employer from asking that question in the first place. Laws created to stop the abuse of this resource and to prevent the employer from using this material to determine eligibility for the position based on your protected status.

State Social Media Laws. Many States have placed into their laws a prohibition requesting your user name and password because of the possible abuse in the use of discovered information that is protected such as age, gender, religion, medical conditions and other such material. Many of those laws do not prevent your employer from accessing that material; but to prevent the abuse from gaining such knowledge about you.

Even if requesting user name and login information is not a violation of terms and conditions of the social media site, several states have made it illegal to do so regardless of these terms. More states are creating legislation enabling additional restrictions and protections for the employee or candidate.

For example, Washington State in 2013 created RCW 49.44.200 a social media account protection law. The law essentially prohibits all Washington employers from requesting, requiring, or otherwise coercing employees or applicants: (a) to disclose their log-in information to their social networking, accounts; (b) to access their accounts in front of the employer, i.e., to permit the employer to shoulder surf; (c) to add the employer or anyone else to the list of contacts associated with their accounts, or (d) to change their privacy settings on their accounts to allow their accounts to be viewed by the employer. The Washington law also states that an employer may not retaliate against an employee or applicant for refusing to provide the employer with access to his or her social media account by any means prohibited by the statute. A current or prospective employee is provided with a private right of action against any employer that violates the social media statute.

The Washington law contains an investigation exception, which allows employers to require that an employee share content from a social networking account if the employer undertakes the investigation “in response to receipt of information about the employee’s activity on his or her personal social networking account,” and the employer needs the information from the social networking account to make a factual determination in the investigation. See http://www.littler.com/files/press/pdf/WPI-Social-Media-Password-Protection-Privacy-May-2013.pdf and RCW 49.44.200.

Federal Laws Related to Social Media
The Department of Justice outlines in the Computer Fraud and Abuse Act, that a violation of the terms of service of a website can be considered to be a federal crime. Many social media websites have added clauses related to a request for login information to their terms of service to protect users. For example, Facebook includes a clause stating that users "will not solicit login information or access an account belonging to someone else" as part of its terms of service.

Information collected through social media background checks could very well reveal information about your protected status to include: age, disability status, religion, race or national origin. It also cautions employers not to take this personal information into consideration when making a final hiring decision. Protected classes still apply when background checks are conducted through social media.
 
Ethics. Social media background checks can be used as an ethical part of the hiring process as long as the employer is focusing only on information that is relevant to the job.

Some suggestions on how to conduct a Social Media Background Check. - When your potential employer makes a determination that social media background checks are lawful and ethical by Policy and a review by the Departments legal counsel, the department can proceed with the process to facilitate in hiring the right candidate. Some Departments will hire outside companies to conduct the search which provides limited information to the Department. This may create an arm’s length relationship and possibly insulate a Department from litigation if a particular candidate was not hired.

In the online recruiting community, Ere.net warns that only public information should be used in a social media background check. Even if a Department is able to access private information by asking a potential employee to send a friend request to the Department, this back door method of getting around privacy settings should not be used. Remember that not all information found in a social media site is accurate remembering the term “garbage in-garbage out” should play a role in how the employer uses the material found on social media sites. If something in the candidates profile is troubling, give the candidate an opportunity to explain the content found on his or her social media site(s). You could be missing out on hiring the best candidate if you rely only on this method of a background check.

Social media searches may also reveal other details about a candidate—such as religious beliefs, political opinions, race, ethnicity, age and medical conditions—that cannot be used to make an employment-based decision under federal, state and local laws. Even if a company would welcome an individual with background material discovered on social media, the candidate could challenge an adverse employment decision made for a legitimate, nondiscriminatory reason based on the information the employer obtained. 

In other words, it is much easier for an organization to defend against a discrimination claim when it never knew of the discriminatory grounds in the first place. The reality is, once this knowledge has been learned, it cannot be forgotten. Once the bell has rung, it is impossible to un-ring it.

Employers should also realize that there is a fine line between a background check and a pre-employment social media screening. If the latter qualifies as a background check, then the company needs to comply with the Fair Credit Reporting Act, including providing applicants with a disclosure that a background check will be performed and obtaining their authorization to proceed with the check. Employers should talk with counsel about their practices and procedures and ensure that they are both legal and done in a way that reduces exposure to liability.

Using Background Information – EEOC Recommendations

Any background information you receive from any source must not be used to discriminate in violation of federal law. This means that you should:

• Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don't reject applicants of one ethnicity with certain financial histories or criminal records, you can't reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.

• Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a "disparate impact" and is not "job related and consistent with business necessity."

• Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job - despite the negative background information - unless doing so would cause significant financial or operational difficulty. See: http://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm

Here are a few Best Practices when using Social Media for background checks offered by Debbie Sutton with Helios HR:

• Understand the risks. If a hiring manager views an individual’s social media profile, and that profile indicates the person is part of a protected class (e.g. age, race, disability, gender, etc.) then the employer could be at risk for a claim of hiring discrimination if an offer is not made.

• Develop a policy. Providing a written employment screening policy with guidelines and best practices for those involved in the hiring process may protect the employer from legal risks.  Failure to have a policy exposes the employer to liability risks and it does not provide managers boundaries for accessing subjective information and making inappropriate decisions.

• Search only public content about the candidate on the Internet. If employers are using social media as part of their background screening, they should only include a review of social media content that is public domain on the Internet.  Employers should not require the candidate to provide usernames, passwords or require them to “friend” the employer, or require them to log onto their accounts so the employer can gain access through their site during an interview.

• Assign someone to reviewing social content. In order to protect the employer and candidate, assign someone within the company as the designated reviewer of the social sites’ content to ensure comments about the candidate’s protected categories and activities are scrubbed before giving the information to the hiring manager or recruiter.  This will help avoid any issues with protected information from being revealed to the decision-maker.

• Be consistent with your searches. If the employer does search social media content, ensure those searches are done in a consistent manner by using the same websites and doing the same search on each candidate.

• Openness about using social media. Be transparent to the candidate about searching public content on the Internet in regards to the candidate.  There are instances where the social network profiles may not be authentic so verifying the identity of the candidate with their social networking profiles will help avoid this.

• Social media content should only be searched after the initial interview.

• Employers should not force a candidate to provide the company with access to their social media sites as it may be illegal in your particular State.

• Document the hiring decisions. This documentation is critical and should include nondiscriminatory, legitimate reasons for the hiring decision.

• Train hiring professionals. To avoid discriminatory activity, employers should train hiring professionals involved in the recruiting process about the employer’s social media search practices

See: http://www.helioshr.com/2015/06/10-best-practices-in-conducting-background-checks-through-the-use-of-social-media/

It is important that your department completes a thorough background check on your candidate but beware of the pitfalls of using a readily available tool called Social Media.

ENDNOTES

Many sources were used in creating this article as noted below

1. http://www.littler.com/files/press/pdf/WPI-Social-Media-Password-Protection-Privacy-May-2013.pdf

2. RCW 49.44.200.

3. Ere.net

4. http://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm

5. Debbie Sutton Helios HR

6. http://www.helioshr.com/2015/06/10-best-practices-in-conducting-background-checks-through-the-use-of-social-media/

John K. Murphy JD, MS, PA-C, EFO, Deputy Fire Chief (Ret), has been a member of the career fire service since 1974, beginning his career as a firefighter & paramedic and retiring in 2007 as a Deputy Fire Chief and Chief Training Officer. He is a licensed attorney in Washington State since 2002 and in New York since 2011 and is a licensed Physician’s Assistant in Washington State. Mr. Murphy consults with fire departments and other public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a frequent Legal contributor to Fire Engineering Magazine, participant in Fire Service Court Blog Radio, curator of the Fire Engineering Policy Bank and a national speaker on fire service legal issues.

For more information on this topic please contact me at 206-940-6502 or at john@murphylawgroup.org