August 10, 2011
By Shawn A. Kachmar, published in Business in Savannah.
When it comes to screening job candidates, criminal background checks and credit report reviews have been standard procedure for many Savannah area companies for years. However, a growing number of area companies are now requiring job candidates to pass a social media background check, marking the latest frontier in a larger national employment trend.
Social media is here to stay and, by any measure, is having a major impact on the way employers screen and hire job applicants. According to the 10th Annual Sources of Hire Study released by CareerXroads in March of 2011, more than 88 percent of employers surveyed reported that they consider social media to be an important part of their overall direct-sourcing efforts.
In July, a New York Times article detailed this growing trend, explaining that job candidates have been eliminated from consideration for employment for posting photos of themselves with guns or posing in a greenhouse filled with marijuana plants. Information, photos and comments posted online are not nearly as “private” and “secure” as most Internet users believe.
Compromising photos shot during a wild night at a party and posted on Facebook or racist comments posted on a blog can come back to haunt job seekers during background checks. Applicants in Savannah are exercising this poor discretion as well — many local clients have called in recent years with questions about how to deal with pictures or comments posted by applicants on the web.
What kind of information can be gathered online about job candidates? Sexually-explicit photos or videos, references to illegal drugs, racist or anti-Semitic language and brazen displays of weapons only begin to scratch the surface. Although these activities are likely conducted outside the workplace, they can have a direct impact on a candidate being eliminated from consideration for a professional position.
Facebook, Twitter and MySpace can serve as fertile ground for social media background screenings, but blogs, Yahoo user groups, Craigslist, Tumblr and e-commerce sites are all fair game. Photo and video sharing sites like Flickr, Picasa and Photobucket can also be searched for potentially incriminating photos as part of a social media background check.
If an employer sits down at a computer and conducts a Google search of an applicant, then there are no significant legal restrictions on what the employer may find and use in assessing an application. Many employers, however, hire other companies to conduct background checks. And with the explosive growth in social media, a number of firms have cropped up in recent years that specialize in conducting social media background checks. These firms will scour the Internet for potentially incriminating photos, postings or comments that could tell more about a job candidate than he or she might reveal in an interview.
If an employer hires one of these firms, however, it needs to be sure to comply with the Fair Credit Reporting Act (“FCRA”), which applies when the employer is seeking a “consumer report,” and it is being provided to the employer by a “consumer reporting agency.” Under the FCRA, there are certain authorizations an employer must obtain from the applicant and certain disclosures which must be made if a negative decision is made based upon what the employer finds.
In addition, employers still have to comply with long-standing laws prohibiting discrimination in the workplace when making hiring decisions based upon social media background checks. For example, while you might not be able to tell much about how a person looks from reading an application, a search of the Internet may reveal that person’s race, age, whether they are pregnant or have a disability, and other personal characteristics. Such information cannot be used when making a hiring decision, or even in deciding whether to interview an applicant.
Although the Internet can sometimes seem like the Wild West, strict laws, in fact, govern the types of information that can be gathered during social media background checks not done by the employer directly, and what actions can be taken based upon data collected. Business owners and principals interested in conducting social media background checks should be sure to consult an employment attorney to ensure total compliance with federal and state laws.
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Shawn A. Kachmar is a partner in the Savannah office of HunterMaclean, practicing in the areas of employment law, employee benefits and business litigation. He can be reached at 912-236-0261 or skachmar@huntermaclean.com.
