CriminalBackgroundRecords.com Discusses the Pitfalls of Social Media Pre-Employment Screening

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CriminalBackgroundRecords.com highly recommends any Human Resource Department and/or business that utilizes social media searches or requests for login information to reconsider.

Criminal Background Records

Criminal Background Records

Any business that uses social media as a screening tool or is considering the use of social media should question that practice and work with a third-party background screening company to ensure they are legally compliant at the state and federal levels.

Adam Almeida, President and CEO of CriminalBackgroundRecords.com states: "Using social media such as Facebook is a risk employers may not want to take. One should understand the laws regulating their use along with the ethical and privacy issues involved."

The advent of greater technology allows distribution of a vast and widening array of information nearly instantaneous. The manipulation of that information provided through social media platforms such as Facebook has proven positive as well as negative results.

When one considers the use of social media as part of a pre-employment screening process one might believe the results to only be positive, especially for an employer attempting to vet a potential candidate. After all searching a website is quick, simple, and may produce a plethora of information, but there are significant downsides as well.

Reported on AmericanBar.org (Sep. 09, 13):
Social media has infiltrated most aspects of the employer/employee relationship. It now impacts recruitment, the drafting of employment policies, employee communications, complaint reporting and investigation procedures, employee discipline considerations, and what employers look at when making hiring decisions. In fact, in 2011, the Society for Human Resource Management (SHRM) found that 56 percent of employers reported using social media in hiring. http://www.americanbar.org/content/newsletter/publications/law_practice_today_home/lpt-archives/september13/the-dos-and-donts-of-conducting-a-legal-yet-helpful-social-media-background-screen.html

With over a billion users, Facebook has become a part of everyday life for a vast majority of people and, overall, social media has become a ubiquitous part of daily life, especially for recruiting. http://www.mediabistro.com/mediajobsdaily/social-media-becoming-ubiquitous-for-recruiting_b7589

Adam Almeida, President and CEO of CriminalBackgroundRecords.com states: "With so many employers using social media sites such as LinkedIn or Facebook as part of the recruiting process it would be a simple step to use the same sites as part of the vetting process. The primary purpose of pre-employment screening is risk mitigation. Isn't looking up a candidate on Facebook another step in that process? Hypothetically, but the legalities are questionable."

There are a few notable instances where employers have asked candidates for their Facebook login information. While no court has yet to issue a decision on this matter, it is the publicity that can cause significant damage to a company. (The Federal Lawyer, Sep 13, p. 67) Further, "requesting social media passwords from applicants and employees opens the door to potential claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and various state laws. (Ibid, p. 67)

Recently New Jersey passed legislation to help protect employees from the request of social media login information.

As reported on Lexology.com (Sep. 06, 13)
New Jersey is now the 12th state to provide employees such protection. On August 29, 2013, the New Jersey State Governor signed into law legislation that prohibits employers from requiring or requesting current and prospective employees to disclose their social media passwords. New Jersey’s new law covers all employers (including any agent or representative), except for state and county corrections departments, the state parole board, and state and local law enforcement agencies. http://www.lexology.com/library/detail.aspx?g=987d419d-fa13-4285-900e-194ed5170bd4
As more and more states create legislation governing the use of social media as a tool for pre-employment screening as well as the federal government's greater scrutiny over this use, employers should question their pre-employment practices and ensure their specific pre-employment practices are compliant.

Almeida states: "Any business that uses social media as a screening tool or is considering the use of social media should question that practice and work with a third-party background screening company to ensure they are legally compliant both at the state and federal levels."

The Federal Trade Commission has acted upon this question:
In 2011, the Federal Trade Commission approved third-party Internet screening. The caveat, if a third party conducts a screen, is that the Fair Credit Reporting Act (FCRA) is triggered, and so are an employer’s obligations under it (e.g., disclosure, authorization, adverse notices.) A third party will go so far back (usually seven years) and search for items the employer deems relevant for identifying good candidates, including, aggressive or violent acts, unlawful activity, discriminatory activity, and sexually explicit activity, among others. It also gathers information about an applicant’s accolades. Most helpful, a third party’s web-crawler system can typically review more webpages than an individual hiring manager tapping away at individual websites like Facebook and Twitter. http://www.americanbar.org/content/newsletter/publications/law_practice_today_home/lpt-archives/september13/the-dos-and-donts-of-conducting-a-legal-yet-helpful-social-media-background-screen.html

If one has a question about the use of social media as part of a pre-employment background check Almeida strongly encourages a company to work with a third-party background screening company.

CriminalBackgroundRecords.com is a third-party background screening company and continues to monitor the actions of the courts and various governmental agencies as their actions pertain to pre-employment background screening. Highly trained in the legal complexities of background screening, CriminalBackgroundRecords.com can provide assistance with maintaining and updating background screening policies.

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