The newest trend among employers looking to avoid losses after hiring is including information found on social media pages and in various online networks in their background checks. The employer’s belief that this information is important and relevant to an applicant’s hiring process is reasonable. However, there are some risks and vital considerations prior to using this information that is relevant to employers and investigators.
The first concern is that this area of background checks is new and unregulated. The court systems, as well as our federal, state and local laws, are lagging far behind technological advances. However, just because this area is unregulated does not mean there are not legal traps to fall into. Many of them fall into the categories of privacy rights and employer regulations that already exist.
As with any inquiry of a person’s background, privacy is at the forefront of considerations to avoid any criminal and civil liability. Although social media pages are considered a public and social forum, anyone with a remote sense of techno-ability knows that there are privacy settings that can be set for each account. The Supreme Court has ruled ample times that intruding where a person has an expectation of privacy is a violation. I would expand upon this to say that it does not have to be a secure place, or, in this context, account, as long as the expectation exists and a reasonable person agrees.
For example, it is reasonable to have an expectation of privacy in your personal email. This is why law enforcement must have a search warrant for any messages sent or received by your account. The same expectation applies to social pages that have had privacy settings applied. To avoid any confusion in privacy matters, make sure it is explicitly stated in the consent form that you will search for all content, including messages, photos, posts, etc., that may be found on any social pages belonging to the applicant. Most importantly, ALWAYS have the written permission of the applicant to access their account.
For recertifying employees (conducting checks after they have been hired), consider the following Supreme Court case regarding company owned devices. If an employer has a policy regarding rights to review messages, or if an employee is using an employer provided device, the employer may then have the right to review any messages sent or received from any account used (City of Ontario v. Quon). The case was based on a police officer transmitting sexually explicit messages from a department owned pager, which resulted in discipline against the officer. The court reversed a 9th Circuit judgment by stating it “was incident to reasonable, work-related audit intended to assess efficacy of monthly character limit.” In other words, if the company owns the device, it retains the right to retrieve data transmitted on it. It’s not a far leap to apply this to content posted, and messages sent, through social pages with a company owned device.
The next consideration in social media background checks is the origin of the content you are checking. If you have had a social page anytime in recent history, you know how often pages are hacked, or content is posted that was not intended by the page owner. As careful as I am with my social pages, I have fallen victim to a similar scam. It often comes in the form of an interesting article with a photo that entices the page owner to click on it. For example, a current scam going around Facebook is a photo of a horrible abrasion on someone’s skin with a tag next to it stating, “See a spider growing under this person’s skin.” Before the victim knows it, they are a fan of a porn page or an obnoxious advertisement that may hinder an applicant in the hiring process. Then their friends click the post on the wall, and before long it becomes viral.
If the origin of the content cannot be determined, I have already educated my clients to ask the applicant about it. If it can be explained reasonably, it is probably safe to move on to the next step in the hiring process.
Once you have established the page ownership, you have legal access to the page, and know the origin of the information, you must now consider whether the information you are viewing is legal to consider in the hiring process. As an investigator, you won’t be making the hiring decisions. However, you will need to keep the protection of your client in mind. Ensure that you are not passing on information that would influence a client’s decision illegally. For example, let’s say you are looking at an applicant that has a debilitating disease, but for all intents and purposes they are able to do the job applied for. They have posted about their treatment or rehabilitation on their page. You then release this information to your client. As a result, the employer concludes the applicant would not be a “good fit.” They may be in violation of federal Equal Opportunity Employer standards.
Finally, remember this one key aspect of this type of background check: Just because it is posted, tweeted, tagged, or in any other form placed on a social page, does not mean that the information holds any factual bearing. For example, two friends are posting in comments that they wanted to kill someone over what was said at the office. This does not mean your next case will be a murder. It may just be a figure of speech, of which we are all guilty. Remember, any information viewed that is questionable may be discussed with the applicant for better context or meaning. In the end it will be the employer’s decision, but these considerations will go a long way to protect yourself and your clients.
Brian Taylor is the managing partner of Innovative Investigations, LLC. He is a licensed private investigator offering background checks and other services. He is also a certified collision reconstructionist. He can be reached at firstname.lastname@example.org