IT Manager's Journal

A survey produced by the Society for Human Resource Management (SHRM) and profiled in the October issue of its publication suggests that many employers are using the Internet to review information supplied by candidates. About half of respondents use search engines, with just under 20 percent researching candidates on social-networking sites. Of the organizations reporting use of the Internet in these ways, roughly 20 percent said they had disqualified at least one candidate based on information that was found.

George Lenard, a St. Louis-based attorney specializing in employment law, cautions on his blog that there are potential legal issues with doing too deep of a search, especially on social networks in which candidates often reveal things about themselves that could be used for illegal discrimination, such as age and nationality.

Violations of the law are easy, and often unintentional, with the amount of data available on social networks. When a person registers on Facebook, for example, that person's profile is public by default. This profile often contains a photo, a "wall" on which other people can leave personal notes, and even the exact year the person graduated from college.

Although an employer may not want to know all of this information -- and in fact has legal reasons to avoid knowledge of a person's age, race, and other details to avoid discrimination suits -- it is visible by default on the social networking Web site Facebook. Even some professional networks such as LinkedIn can reveal information like employment dates, which can suggest someone's age. LinkedIn recently added the ability to upload a small photo as well.

Illegal employment discrimination can go well beyond what the Federal government prohibits. More than half of states have laws that prohibit companies from making hiring decisions based on off-the-job activity. Many of these laws are specific to smoking -- the possible result, Lenard says, of a legislation push by the large tobacco companies in the late 80s or early 90s.

In ten states, anti-discrimination laws extend beyond tobacco and some, like Missouri and Illinois, even mention alcohol consumption. That may concern the MySpace generation, wary of potential employers spotting a college "party photo" in which they are holding a beer. However, these state laws would require that if the employer found such a photo, it couldn't be used to disqualify the candidate unless the employer knew that the consumption was illegal (for example, if the drinker was underage at the time).

Personal relationships are another risky area. Eighteen primarily coastal states bar discrimination based on sexual orientation, while many more bar discrimination based on marital status. Facebook subscribers are encouraged to disclose both of these during the sign-up process through their "Relationship Status" and "Interested In" profile attributes. Although optional, these traits appear at the top of a person's profile, if supplied.

Outsourcing background checks, Lenard says, can reduce the risk of accidentally (or intentionally) viewing information that could be used to discriminate improperly. The keys, he says, are to choose a reputable company to perform the checks; and to have clear, specific, and objective instructions for the company.

One of the pitfalls of background checking in general, Lenard says, is that there's a "pretty good likelihood" that if an HR department uses a third-party company to do a background check, the hiring company could become subject to the Fair Credit Reporting Act (FCRA).

Most people associate the FCRA with the periodic privacy notices the receive from their banks. But "for a while now," Lenard says, "it has applied to employment decisions" for which a third party provided information, because of language that designates any company doing investigations of character or reputation for others as a "consumer reporting agency" that is covered under the law. This means that if your prospective employer will be using a third-party firm to do a background check, you have to be told of this in advance. If you're denied employment as a result of something that the company finds, you have to be told why and be given the opportunity to dispute the finding.

Ultimately, Lenard says, most employment-related lawsuits concern firing, not hiring. However, hiring litigation has been on the upswing, he cautions, particularly in the form of potentially costly class-action lawsuits.

So far, social networks don't appear to have been the basis for a hiring suit. The best protection against potential hiring suits, Lenard says, is to have an objective, well-documented process and to stick to it.