Social media background checks can have implications of liability

We’ve written a lot about social media background checks lately, because it’s a trend that’s creeping into both formal company policies and informal hiring practices. It’s on the minds of employers who haven’t begun implementing any sort of social media check, and it’s on the minds of every Facebook and Twitter user who has contemplated what sorts of things they’ve shared that might come back to haunt them during their next job search.

Employers need to think long and hard about possible legal consequences before asking job applicants for their username and passwords in order to access personal profiles on select social media websites. Employers often don’t realize that once they’ve asked for an applicant’s social media login information, they become liable for the content posted.  This can be trouble in a few different ways.

  1. If an applicant admits guilt to some kind of crime within their personal profile, the employer who is given access to it may assume liability for protecting the information they find.
  2. If an employer finds out an applicant’s age, sexual orientation or another protected class, and then decides not to hire that person, they could be opening themselves up to discrimination claims by the applicant who was not given a job.
  3. If an employer misses signals or warning signs and something happens (crime is committed, someone is injured) the employer could become liable.

Social media background checks are here to stay in some capacity. But employers need to approach this trend with careful consideration.

 

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States propose anti-social media background check laws

Are you requiring job applicants to fork over their social media website login information as part of your company’s pre-employment screening process? While checking social media sites is becoming more and more popular among employers as yet another avenue for finding out all they can about a prospective employee, some state lawmakers and organizations are already gearing up to fight this practice, which they say is an invasion of privacy.

This past week Sen. Richard Blumenthal (D-CT) was added to the handful of state representatives across the country who are proposing laws to make this practice illegal. Blumenthal says that his bill, once finished, will include some exceptions, like for federal and local law enforcement agencies, and government agencies that handle national security issues. He did indicate that private companies that receive government contracts would be regulated under the legislation.  

A similar bill in Illinois is backed by the ACLU. Such a law, if it passes, would make it just as illegal for an employer to ask for an applicant’s Facebook password as it is illegal for an employer to ask a woman if she plans to have children.

As we’ve advised before, employers who wish to conduct social media background checks – and the numbers are growing – should tread carefully, so as not to open themselves up to discrimination claims or risk using false information when weighing their hiring decisions.

 

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Three tips to get small business on track with background screening

If you’re a small business who has never had a formal policy for background screening employees and applicants, now is the time. If you’re not sure where to start, here are a few tips.

  1. Create a policy. The best practices need to be written down and followed across the board, so get an employment background screening policy in writing and put it in the hands of every manager, human resources personnel and employee. Include exactly what types of background checks and reports will be done for each applicant, and for what circumstances or terms of employment. Having something in writing that is followed every single time will help to save you from discrimination claims down the line.
  2. Don’t go it alone. Hire a reputable background screening service that can help to automate and bundle your reports when necessary. Leave it to the experts to get the most comprehensive information on every single employee, every single time.
  3. Regularly reassess. Any good policy gets brought back to the table and scrutinized on a regular basis, and this one is no exception. With the way social media and emerging technology are blurring the lines between professional and personal, it’s a good idea to take a look at your background screening policy regularly to make sure it includes the very best practices related to the very latest screening trends and laws.

 

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Know what to ask — and what not to ask — during employment verification

Checking an applicant’s professional references is a critical step in the pre-employment screening process. But do you know what you can and can’t ask? While performing employment verification, any human resources executive or hiring pro can make the innocent error of asking questions that infringe on an applicant’s privacy or open up the employer to discrimination claims by someone who is not ultimately offered the job. 

The easiest way to remember what is off limits is to remember you can’t ask a reference any questions you are prohibited from asking an applicant. You must keep the conversation on job-related issues. Here are some sample questions to help get you in the right frame of mind:

  • What was the employee’s starting salary? Ending salary?
  • What was the employee’s starting position? Ending position?
  • Please describe your reporting relationship with the candidate?
  • Please describe the key responsibilities of the candidate in his/her current position.
  • How many reporting staff did the candidate manage?
  • Tell me about the candidate’s most important contributions to the company?
  • Describe the candidate’s productivity, commitment to quality and customer orientation.
  • What are the candidate’s most significant strengths?
  • What are the candidate’s most significant weaknesses?
  • Would you rehire this person? Why or why not?

 

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