Written by: Roy Maurer
This is the first article in a two-part series. The next installment will examine how employers can ensure data security in the screening process and what to expect with forthcoming artificial intelligence technology.
Employers are ramping up their use of social media screening and real-time employee monitoring in 2019. And the demand for workers in a tight labor market will push more companies to consider applicants they may have once ignored: those with criminal records.
Social Media Checks
Employers have shown increasing interest in screening candidates’ online presence.
In 2019, more background-check providers will offer online and social media searches as part of their suite of products, but employers must ensure that these searches protect candidate privacy and don’t run afoul of the federal Fair Credit Reporting Act (FCRA) or standards set by the Equal Employment Opportunity Commission (EEOC).
“Social media screening presents opportunities for recruiters to find candidates and to reduce risk, but at the same time, these searches can create a legal minefield of potential liability,” said Les Rosen, founder and CEO of Employment Screening Resources, a background-screening firm in Novato, Calif.
Interest in social media screening has grown significantly over the last few years, said Bianca Lager, the president of Santa Barbara, Calif.-based Social Intelligence Corp., a leading provider of social media screening reports. “We now see almost daily news stories of someone getting into trouble with their employer over what they’ve written online,” she said. “Hiring companies know they can’t get away with ignoring social media as part of the background-screening process any longer, but the DIY approach is incredibly troubling for candidates in terms of privacy, accuracy and discrimination.”
If HR professionals are conducting their own online searches on job candidates, they need to stop, said Montserrat Miller, an attorney with Arnall Golden Gregory, based in Atlanta. “The potential for a discrimination claim far outweighs the cost of adding a social media screening option from a vendor.”
Rosen said that employers should be wary of discovering too much information—or “TMI”—on social media. ” ‘TMI’ means by looking at [an applicant’s] social media site or perhaps a photo or something that they have blogged about, you are going to learn all sorts of things as an employer you don’t want to know and [that] legally cannot be the basis of a decision,” he said. Job applicants can sue employers for discrimination if they believe they were not hired due to protected characteristics covered by Title VII of the Civil Rights Act of 1964, including race, color, religion, sex or national origin.
“Even the appearance of a decision not to hire someone based on a negative impression related to race, gender, religion, or other protected classes could subject [employers] to a discrimination lawsuit,” said Christine Cunneen, CEO of Providence, R.I.-based background-check company Hire Image.
Experts agree that if employers decide to screen an applicant through social media, the best way to reduce legal risk is by having a third-party vendor perform the search instead of doing it in-house. Background-check providers that perform social media screening must comply with the FCRA and produce accurate reports scrubbed of protected characteristics.
“Social media reports won’t show whether or not someone is Muslim or gay or a military veteran, to protect the employer from a discrimination claim,” Miller said. “They will only provide instances of actionable, offensive information, for example relating to criminal activity, violent behavior or making racist comments.”
Cunneen added that employers need to be careful not to violate candidate privacy. Social media screens should be drawn only from user-generated, publicly available information and not from third-party content or password-protected sites. “If the applicant’s social media settings are set to public, that information is open for anyone, including potential future employers, to review,” she said. “However, if their profile is set to private, the employer cannot try to bypass those settings without risking exposure to potential liability down the road.”
New technology lets companies go beyond pre-employment checks and rescreens to real-time monitoring of current employees for warning signs of illegal or other concerning behavior.
“Employee monitoring is one of the biggest trends I’m seeing,” said Jason Morris, an employment screening consultant and industry expert with Morris Group Consulting in the Cleveland area.
“Justifiably, employers will always want to know who is working for them—not just [during] hiring but throughout their employment relationship,” Cunneen said. “A current employee can engage in illegal behavior as much now as he or she could have before they were an employee.”
Uber announced plans last year for ongoing monitoring of arrest and conviction data on their drivers. “These tools have been around for a while, but end users are finally seeing the benefits, and the data is getting better,” Morris said.
Uber teamed with San Francisco-based screening firm Checkr to get continuous updates about drivers’ records, including new criminal violations and license suspensions. The technology will notify Uber, for example, when a driver is charged with driving under the influence.
“It is a subscription that listens to a candidate’s data over time, looking for and identifying changes in their background to mitigate risk for companies,” said Tomas Barreto, vice president of product and engineering at Checkr. If new information triggers a full background check, the worker is also notified, he said.
“While there are some industries whose regulations have mandated continuous or some form of periodic screening, such as health care, we are seeing more industries embrace the idea,” said Melissa Sorenson, executive director of the National Association of Professional Background Screeners. “Like any background-screening program, it’s important for employers to ensure they follow both federal and state law related to background screening—including following disclosure and authorization requirements before conducting a background check, as well as adverse action processes in the event that the results of the background check lead the employer to consider not hiring, promoting or retaining the individual.”
Hiring People with Criminal Records
Research shows a majority of HR professionals find little difference in quality of hire between applicants with and without a criminal record.
“The fact that employers cannot find workers due to the current labor shortage has caused them to turn to an untapped and underutilized source of labor: ex-offenders and [former] inmates from the approximately 20 million Americans who have been convicted of a felony,” Rosen said.
The Prison Policy Initiative calculated the ex-offender unemployment rate to be 27 percent, higher than the total U.S. unemployment rate at any time, including during the Great Depression.
Alonzo Martinez, associate counsel for compliance at background-screening company HireRight, said that with the number of unfilled positions now exceeding the labor pool, employers are recognizing the potential in this previously untapped group of candidates.
“While a criminal record should never be an automatic deal breaker—especially for candidates who have misdemeanors on their records, have served their time or have been rehabilitated—in the current market, employers are increasingly considering candidates with criminal records and redefining policies and requirements to lower some of the barriers to employment that ex-offenders face,” he said.
“Companies recognize that hiring from this population is the right thing to do, but it’s also good business,” said Richard Bronson, the founder and CEO of 70MillionJobs, the first for-profit job board specifically for job seekers with criminal records.
“Companies are motivated by the bottom line, and they recognize that unfilled jobs are costly. Every single company I talk to says they are facing a staffing shortage or they have trouble retaining their workers, particularly at the lower end of the wage scale. Perhaps they would not have been eager to consider this population before, but I think they generally recognize that they can ill afford to ignore any large pool of talent out there, and this is arguably one of the largest. One in three adults have a record of some kind.”
The industries most hospitable to people with criminal records have been call centers, construction, health care, manufacturing, retail, and transportation and warehousing. “The technology sector has been woefully reticent to take action,” Bronson said. “They talk a good game but don’t deliver when it comes to actually hiring.”
Martinez said HR must be cognizant of the challenges involved with screening the ex-offender population, such as a longer turnaround time to ensure a complete assessment.
“Companies should continue to perform thorough background checks and conduct individualized assessments of candidates with criminal history, per EEOC guidance,” he said. “It would also benefit companies to review their hiring requirements to determine the types and depth of screening that is necessary for each job position. This can reduce the volume of acceptable hires that are unnecessarily flagged for additional review for reasons that are not related to the role’s responsibilities.”
Written by IT-ONLINE
Digital transformation is changing the way people and industries engage. Access to information has become easily attainable and platforms have evolved to allow for remote services on-demand.
What does this mean for the background screening industry? Should professional vetting companies utilize this online data because it is now easier to access, and is background screening still meeting its purpose on these platforms?
With social media platforms making personal information available at a click of a button, it is difficult for employers to ‘play blind’ to the reality of what is available for public scrutiny. “While it may be hard for an employer to ignore character traits of an employee based on what the employee has posted or been tagged in on social media, it is very important that the employer considers if such screening is compliant, and consent based,” says Michelle Baron-Williamson, CEO of Managed Integrity Evaluation (MIE).
“We have all read stories about people losing their jobs because an employer discovered something incriminating on their social media pages. However, new regulatory legislature such as the Protection of Personal Information (POPI), are set to guide what personal information is directly relevant to companies when they make hiring decisions, especially as private information becomes more exposed in the public sphere,” adds Baron-Williamson.
“It has been said that compliance will impact technology, processes and the manner in which employers process personal information. As much as technology is providing for easy access to information, as well as convenience and agility, it is still essential that these technologies cater for accuracy and mitigate the risks that come with cyber fraud that can exist on digital platforms.”
As industries make a rapid shift from traditional methods to digital platforms for their own internal processes, the transition is also impacting the background screening arena.
“In recent times, background screening vendors have updated their tools and solutions in an effort to create a seamless candidate and employer experience. Some of the very visible evolutions have been online applications and verifications that provide candidates with progress status in real-time,” elaborates Baron-Williamson. ”
While this is great for user experience, authentication technologies are still important to ensure you are dealing with the right person. Solutions that are merged with biometric verification, such as fingerprint and iris identification, are classic examples of narrowing risks and ensuring accountability.”
Background screening remains an essential practice in the hiring process – which is why it is important to maintain compliance and keep up-to-date with the changing legislation that regulates data. The erupting digital environment is also set to advance in the nuance and sophistication needed to tackle these types of issues, as they arise in the digital world.
“It is possible to embrace new technology without losing credibility for background screening. Digital adoption needs to be centered on security for accuracy – which is the very essence of background screening,” concludes Barron-Williams.
Written By: Michael Klazema
Social media background checks are slowly becoming the norm. According to CareerBuilder, 70 percent of employers use social media in some way to vet their employees. In most cases, these checks are innocent — or at least well-intentioned. Employers want to make sure the people they hire are conducting themselves online appropriately and respectfully. No brand wants one of their employees sending out offensive tweets on a regular basis or badmouthing his or her boss on Facebook.
Intention is not the only thing that matters with social media background checks. In fact, employers can, and do, stumble into a mess of legal and ethical implications by looking at a job candidate’s Facebook page or Twitter account. Here are some of the biggest dangers of social media background checks.
- Bias and discrimination
There are certain pieces of information employers are not allowed to ask about on job applications or in interviews. Details about a person’s sexual orientation, race, gender identification, religion, nationality, political affiliation, and marital status are off the table.
Not only are these details irrelevant to virtually any job, but they can also compromise the hiring manager by rendering that person unable to make an unbiased hiring decision. This bias, unconscious or not, can lead to employment discrimination, which can result in lawsuits, reputational damage for the employer, and other issues.
What if employers vow not to look at any information on a social profile that could put them at risk for discriminating against a protected class? Hiring managers often assume they can make this choice, but they are mistaken: you never know what you are going to find when looking at a person’s social media profile.
On one Facebook profile, potentially sensitive information might visible only in the “About” section. On another profile, it might be evident just from photos, recent posts, or other immediately visible content. The unpredictability of social media profiles and posting habits makes it impossible for employers to look at Facebook or Twitter without potentially discovering information they aren’t supposed to know.
- Legal violations
Perhaps the worst thing an employer can do in the process of running a social media background check is to require a candidate to hand over access to their social media profiles. In some cases, employers provide spots on their job applications where they ask applicants to provide social media usernames or even passwords. In other cases, employers ask candidates to login into their Facebook profiles during a job interview so hiring managers can look at the contents.
These practices save employers from having to search fruitlessly for candidates on social platforms. They also help circumnavigate privacy settings. However, these practices are also extremely problematic and are even against the law in certain parts of the country. According to the Society for Human Resource Management, many states — including California, Colorado, Illinois, Maryland, Michigan, and New Jersey — have made it illegal for employers to request social media usernames or passwords from their candidates.
- Violations of protected activity
Employees are strongly discouraged from complaining about bosses and managers online. This type of behavior not only looks petty to friends and family but is also precisely what employers are looking for when they do social media background checks. What very few people realize is that complaining about your boss on social media is something that is considered a “protected activity” under the National Labor Relations Act.
Commiserating about a boss or supervisor to fellow employees is protected under the law. Since most people are friends with a few of their colleagues on social media, employees often cannot be punished for blasting supervisors online.
- Privacy infringements
Employers use social media background checks to see how their candidates behave in real life. In most cases, it’s none of an employer’s business what a person does when they aren’t at work.
Most people would agree someone posting a photo of themselves doing shots of tequila, wearing a provocative outfit, or participating in a suggestive or explicit act might not always be tasteful. But if these behaviors aren’t happening on business property or during work hours, they have no relevance to any hiring decision. Employers should beware of the ethical implications of bringing these private life matters into the workplace.
- Consistency and verifiability
State laws do not bar employers from using social media for any form of background check, but they do make it more difficult. Left to their own devices, employers must use social network search functions to find their candidates on LinkedIn (usually pretty easy), Facebook (more difficult), and Twitter (next to impossible).
This added challenge brings to light issues with the consistency and verifiability of social media background checks. Employers can rarely be sure if they’ve found the correct social media profile for a candidate. Since many candidates are difficult to find on social media — whether because they don’t have active accounts or have activated robust privacy settings — there is no consistency to the social media background check process.
Someone who is very active on Facebook could have a disadvantage compared to a candidate who doesn’t have a profile. With any background check, consistency in procedures from one applicant to the next is paramount. That consistency cannot be achieved with social media background checks.
Employers and job seekers alike should be aware of the rocky implications of social media background checks. More traditional background checks — from criminal history searches to educational verifications to reference checks — are considerably more effective and less legally or ethically treacherous. Even though more and more employers are using social media to vet their candidates, there are countless reasons that the practice is time-consuming at best and extremely risky at worst.