Background Checks on MySpace—Dangerous or Due Diligence?
(From HR Daily Advisor (BLR) August 10, 2009)

Question - Is it now negligence if you don’t do background checks on MySpaceTM and Facebook?

Answer - “We’re not there yet for every job,” says attorney Joseph Beachboard, “but it’s getting there for sensitive jobs like installers and home care providers.”

Beachboard’s comments came at the recent Society for Human Resource Management (SHRM) Annual Convention and Exposition in New Orleans. He is a shareholder at the Los Angeles office of Ogletree Deakins.

Where Are Companies Looking?
Beachboard finds his clients looking at the following types of websites:
Search engines:
• Google
• Yahoo!®
Social networking sites:
• Facebook
• MySpace
• Twitter
• Classmates®
• Virtual worlds (sites where users create their own characters)
Rant sites
• Fthisjob
• Jobvent

What Are the Issues with Internet Searches?
Beachboard offered several lawsuits as examples of the types of situations employers are facing.

A Delta Airlines flight attendant posted provocative pictures of herself in her uniform on company planes on her personal website.

The Arlington, Oregon, mayor posed for photos wearing lingerie and sitting on town fire trucks. The photos were discovered on the mayor’s MySpace page.

“Cisco fatty” tweeted that “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” Cisco rescinded the offer. (Cisco Fatty was getting an information management degree, Beachboard points out.)

A librarian with the same name as the “Wii Fit Girl” (YouTube’s 3-million hit “Why Every Guy Should Buy His Girlfriend a Wii Fit”) had trouble getting a job because people thought she was the Wii Fit Girl.

Underlying these situations is an essential conflict between employee and employer expectations, Beachboard says.
• Employees expect that their “private” information won’t be used.
• Employers are searching for the best information to make decisions.

What’s the Potential Liability?
Although there are no federal laws prohibiting online searches for information about applicants and employees, there are some laws that come into play:

FCRA, the Fair Credit Reporting Act, requires certain notifications and procedures for credit reports conducted by third parties. If you engage a third party to conduct the searches, you must comply with FCRA.

NLRA (National Labor Relations Act) may also come into play if unions are involved. Websites and blogs about terms and conditions of employment may be “concerted activity.”

Discrimination statutes protect against discrimination on the basis of race, age, gender, etc. You are likely to get information about those factors during a search. Once you have the information, you are open to a claim that you acted based on that knowledge.

The Stored Communications Act (SCA) may also cover certain actions related to obtaining information.

State Laws Also Apply
Many states offer broader protections. And most states have common law privacy rights called “intrusion upon seclusion” and “publication of private facts.”

The Question of Balance
The question is this: Does the employer’s need for information outweigh the employee’s right to privacy?

The employer’s strategy is to show that need is high, while at the same time making the reasonable expectation of privacy low.

Pros and Cons
Beachboard identifies the following pros and cons of doing Internet searches in the employment context.

Pros for doing the search
• It’s a critical decision.
• You may gain invaluable information about character.
• It’s far easier to avoid a bad hire than to get rid of a bad hire.
• “Failure to hire” suits are much less likely than suits over termination.
• It may help to avoid a negligent hiring claim.

Cons for doing the search
• Sites are rife with information impermissible to consider.
• Possession of information may taint an otherwise well-based decision.
• There is the possibility of making a decision based on incorrect information (like Wii Fit girl).
• You’ll increase the likelihood of litigation.
• You may generate bad publicity.

A Plus Benefits, Inc. HR Department Comments. While not every job requires that an organization conducts a “proper” background check (for identity and criminal history), any job that directly interfaces with the public and your clients screams for one.

Background checks are almost mandatory for these job, home health care, sales that are conducted on a one on one basis away from the office, in home sales, education, high tech, anything that has to do with handling cash, driving, safety sensitive jobs, and the list goes on and on.

Contact your Client Account Manager or an HR Advisor for more information about low cost background checks.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.