Facebook and Pre-Employment Background Screening: Have We Gone too Far?

facebook like buttonIf you’ve ever hired someone, you’re probably well aware that every employer must follow FCRA privacy guidelines when conducting a pre-employment background check. The FCRA (Fair Credit Reporting Act) requires companies to inform applicants that they will be conducting pre-employment background screening. Employers must obtain applicants’ permission to do certain background checks, and if an adverse action is taken as a result of an investigation’s findings – say, an adverse effect like not being hired for the job – the employer must inform the applicant of this decision.

For years, credit reports, drug tests and professional background checks have been the main aspects of pre-hire scrutiny that employers had to worry about. But now it appears social media investigation could also be subject to privacy laws.

The truth is that the majority of today’s companies will analyze an applicant’s character by scouring their social media profiles. According to a 2011 survey of 300 hiring professionals conducted by the social media site Reppler, 91 percent of respondents have utilized social networking sites to vet potential employees. In other words, reviewing candidates’ Facebook and other social media profiles is nothing new. Job placement expert John Challenger vouches for the fact that private companies are more frequently scouting out potential hires by surfing Facebook and other social networking profiles.

There is a spectrum of positions on the topic of digital privacy in background checks. On the pro social media pre-employment background check side, many job hopefuls advocate using social media to attract employers and land new positions. A positive digital persona can earn the confidence of hiring professionals. Some websites, such as LinkedIn, are particularly geared toward creating and growing an employable online profile.

Yet many question whether some companies have crossed a line into privacy violation in pre-employment background screening. Some firms are going so far as to ask for applicants’ logins and passwords!

Previously, public sector applicants were most likely to be asked for Facebook access as part of pre-employment background screening. Law enforcement personnel were especially likely to face social media scrutiny in background checks. For instance, as reported at NPR, one Maryland officer was asked for his Facebook login data when reapplying for a corrections position. His employers stated that their purpose in checking his Facebook profile was to figure out whether he had any gang connections. This isn’t too surprising – those who work in law enforcement, education and healthcare have long faced more intense pre-employment background screening than applicants in other fields. However, more and more private companies are now asking for Facebook and other social media login information.

This type of pre-employment background check is currently legal in all 50 states, but it doesn’t seem like this will be the case for very long. Very soon, Maryland employers could be banned from asking for social media login information, thanks to a new bill that enjoyed unanimous approval in the Maryland Senate and broad support in the House. The governor’s signature is all that’s required to put this new restriction on pre-employment background screening into law.

State legislatures in California, Michigan and Illinois are working on similar bans. The proposed Illinois legislation would make “asking for login information for a social networking site as unlawful as asking a woman whether she plans to have children,” according to Colleen Connell, executive director of the Illinois ACLU, which is rallying for the bill.

These developments have many attorneys wondering whether FCRA standards will be applied to social media background checks. Over the next few years, courts will establish bolder boundaries around what is and is not legal in digital pre-employment background screening. Questions of privacy and free speech rights will be answered more decisively as more and more lawsuits are brought against those who insist on using social media login information in background checks. But to protect your firm’s reputation now, here’s what to do:

  • Abide by all FCRA guidelines. If you conduct pre-employment background screening in house, be sure to have your attorney review the legality of your typical procedure for conducting background checks.
  • Be wary of smart phone apps for background checks. This is another gray area, legally speaking. Monitor which apps have been flagged by the FTC as potential violators of FCRA guidelines.
  • Understand that you may be forced to disclose your hiring justifications. If you are sued, you will have to explain why you rejected the candidate. So don’t make decisions based on race, sexual orientation, parental status, age or any other characteristic not directly related to the position at hand.
  • Ask those who carry out background checks to report only job-related information. If one of your staffers is assigned the task of researching applicants’ social media profiles, instruct them to report only information that is relevant to the job. This will offer some legal protection for your hiring manager.

Balancing position requirements with legal liability is the dance employers must do when conducting pre-employment background screening.