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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Two new laws change the background screening business in California

 If you are an employer in California or you do business in that state, you should be aware of two new laws taking effect on Jan. 1 that might change your pre-employment screening practices.

The first change, thanks to California Assembly Bill 22, is that it will be against the law for most employers and prospective employers in California from obtaining credit reports for employment purposes. Exceptions to this rule include financial institutions and those hiring for certain positions, such as managers, those in law enforcement, and positions that require access to personal information or financial information.

The other change is due to California Senate Bill 909, which appears to be the first law in the nation that addresses the issue of consumers’ personal information that is collected during background checks for employment purposes being sent “offshore” and outside the United States or its territories beyond the protection of U.S. privacy laws.

SB 909 amends the California Investigative Consumer Reporting Agencies Act (ICRA) that regulates background checks in California and requires a new disclosure and additions to a Consumer Reporting Agency’s privacy policy to be made to consumers before their personal information is sent outside of the United States. It does not regulate or prohibit the sending of personal information outside the U.S., but it requires that consumers be told of the background screening agency’s privacy practices, including whether the consumer’s personal information will be sent outside the country.

If these new regulations will be affecting your business or the way you conduct employment screening, now is the time to read up on the changes and make sure your company, and the pre-employment screening service you hire, remains in compliance with the law.

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Criminal Record Not Necessarily Grounds for Unemployment

Deciding to use pre-employment screening tactics for all potential hires is one of the wisest moves an employer can make. Employing a reputable company to carry out those background checks is the second wisest move. But there is a third step, one that involves just as much business savvy and interpersonal skills. That step is interpreting those reports correctly — particularly the results from a criminal background screening — and making fair, unbiased judgment calls based on the information gleaned from the screening.

For example, many employers believe they can disqualify an applicant based on a criminal conviction, with no further reason beyond “You have a criminal record.” But not only is that logic faulty, that business tactic is illegal. Once a person has served the applicable punishment for his crime, the law does not allow him to be indiscriminately penalized for the rest of his life by being rendered unemployable. If the job parameters have nothing to do with the crime he committed, his criminal past should not affect his employable future.

Of course there are exceptions. A wise employer knows not to give a convicted sex offender a job as a camp counselor, for example. But job applicants have the right for the sum of their experience, education and job history to be taken into account, particularly if the criminal conviction was eons ago and for something completely unrelated to the job for which the person is applying.

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