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HR Magazine: How Deep Can You Probe?

Rita Zeidner  10/1/2007
 

HR Magazine: October 2007Vol. 52, No. 10

Many employers are going online to check out job candidates. But does the practice carry hidden risks?

When Mary Willoughby was looking to hire a technology director, she went online to check out the leading candidate.

On his page on MySpace, a popular social networking site, the applicant talked at length about his interest in violent films and boasted about his romantic exploits.

Based on what she saw, Willoughby, the human resources director for a New York nonprofit that provides assistance to people with disabilities, decided to keep her search open and ultimately offered the job to someone else.

"It's not that he did anything wrong," Willoughby says of the young man she passed over. "But we're an organization that serves the disabled. We decided that this was not a good fit."

Several high-profile cases of resume fraud, widely reported by the media, underscore the problems that can occur when an applicant is not adequately vetted. Earlier this year, a previously well-regarded Massachusetts Institute of Technology admissions officer was forced to resign after admitting she lied about where she had gone to school. Last year, RadioShack Corp.'s chief executive, David Edmundson, was forced from his job for lying about his credentials.

Eager to keep their own companies' names out of the headlines, many employers are trying to be more vigilant. A recent survey by the Society for Human Resource Management (SHRM) found that nearly half of the HR professionals who responded run a candidate's name through a search engine like Google or Yahoo! before making an offer. About one in five of those HR professionals who conduct such searches said they have disqualified a candidate because of what they uncovered.

Looking for Trouble

Many employers do online background searches to identify fraudsters before they are brought on board. And even if a search turns up nothing negative about a candidate, it may help an employer show due diligence and fend off a negligent hiring charge if relations with a new hire turn ugly later.

Some 15 percent of the HR professionals who responded to the SHRM survey said they check social networking sites like MySpace and its fast-growing competitor Facebook to see what a job candidate has posted. And their ranks are likely to increase: Some 40 percent of the survey's respondents who don't now go to the sites say they are "somewhat likely" or "very likely" to visit them in the next 12 months. In most cases, checking such a site only takes a few moments.

Recruiter Tom Darrow of Talent Connections in Atlanta says he doesn't check such sites when scoping out candidates, but he can understand why employers do. Darrow offers a hypothetical example of a pharmaceutical company concerned about infiltration by radical animal rights advocates. While information about a candidate's attitude toward animal testing might not come up in an interview, or be revealed in a traditional background check, it might be disclosed on a networking site.

"The only downside of checking out the candidate's MySpace page," Darrow says, "is that it takes time."

Recognizing Hidden Risks

But some HR practitioners say they are unnerved by the trend and question whether it is ethical, responsible or even legal for employers to be trolling such sites. "I've had some heated discussions on this with my colleagues," says Willoughby of the Center for Disability Rights in Rochester, N.Y., a member of SHRM's Workplace Staffing and Deployment Special Expertise Panel who has earned SPHR certification.

infographic Inadvertent violations of the federal Fair Credit Reporting Act (FCRA) and related state consumer protection laws are a hidden risk of online screening, according to Les Rosen, a former California deputy district attorney and a founding member of the National Association of Professional Background Screeners, a Morrisville, N.C.-based trade group representing more than 500 background investigators.

The FCRA requires employers to notify job applicants and obtain their consent before conducting a background check. And while the law is geared toward obtaining official reports such as criminal histories and driving records, it's a good idea for employers doing online checks to follow the same notification and consent rules, says Rosen, author of The Safe Hiring Manual (On Demand Press, 2005) and head of a background screening firm. For a company bent on running Google searches on its potential hires, Rosen recommends that such an inquiry be conducted post-offer and only with the applicant's consent. An employer who changes his mind about a worker after finding disparaging information online generally would not be required to provide an explanation, Rosen says.

Employers also increase their exposure to discrimination claims when they gather too much information about a candidate. Companies suspected of rejecting a candidate based on race, religion or marital status can find themselves being hit with a claim of hiring based on unlawful factors.

Robert E. Capwell, chief knowledge officer at Employment Background Investigations Inc. in Pittsburgh, says if an employer does turn up information that a candidate could claim was used to discriminate against him or her, "You can't turn back the clock."

And just because a hiring official is turned off by the raunchy material someone posts on Facebook or MySpace doesn't mean she can use it to disqualify a candidate. Many states limit the extent to which employers can consider off-duty conduct in making a hiring decision, according to Capwell.

"If [the activity] is not related to the job and it doesn't change how the applicant does [his or her] work, then maybe it shouldn't be considered," says Capwell.

When it comes to a job candidate's political activities, the line for employers is often blurry and may depend on specific circumstances. For example, in the hypothetical case of the pharmaceutical company that is considering a candidate who criticizes animal testing on his Facebook page, "I feel, absolutely, that this is job-related," says Darrow, who maintains that an employer has the right not to hire someone who opposes the way the company does business.

Using networking sites for hiring purposes may also violate these sites' terms, some lawyers say. Both Facebook and MySpace post rules prohibiting the use of information on their sites for commercial purposes. That arguably includes vetting employment candidates. The sites also ban the collection of e-mail addresses and the dissemination of unsolicited e-mails and solicitations -- common practices for many recruiters.

Some lawyers warn that using social networking sites to vet job candidates may hurt employers by turning off good candidates who don't want the company snooping on them without their consent.

Another reason for employers to exercise caution: There's always the possibility that the information found online about job candidates simply isn't true.

Human resource consultant Becky Strickland of HR Matters in Pueblo, Colo., says she takes any information gleaned from the Internet with a grain of salt. Even an incriminating photo of a job candidate isn't necessarily proof positive that the person has engaged in bad behavior. The photo could have been created by an imposter.

"The Internet is not necessarily a reliable source," Strickland says.

Screening the Screeners

Online databases can be another potential landmine for do-it-yourself screeners. While some legitimate information is accessible to employers over the Internet for a fee, many databases shortcut background screening industry standards. Unbeknownst to their paying clients, some databases rely on incomplete data sources or on information that is out-of-date. Some databases that provide criminal histories don't distinguish between arrest records and convictions. That could be a problem since using arrest records to disqualify an employee is illegal in some states.

"National databases are a tool, but the information always needs to be verified," advises Capwell.

A thorough criminal background check almost always requires a trip to the county courthouse in each of the jurisdictions where the applicant has lived, Capwell says.

To illustrate the problem with large commercial databases, Rosen cites in his book a 2004 study in which a University of Maryland professor obtained the criminal records of 120 Virginia parolees and submitted their names to a popular online background check company. Sixty names came back showing the person had no criminal record, and other reports were so jumbled it was hard to identify specific offenses.

In some cases, database inaccuracies can prompt an employer to take the wrong action. In June, a coalition of labor, privacy and civil rights groups filed a complaint with the Federal Trade Commission urging the agency to investigate four transportation companies that fired 100 railroad workers after conducting criminal background checks. The complaint alleges that at least some of the firings were related to database errors. In addition, several of the workers had clean records but were victims of identity theft.

"The ability of an ordinary American to get a job, qualify for credit or even find a place to live depends increasingly on the information collected and stored by massive data aggregators," says Ari Schwartz, deputy director of the Center for Democracy and Technology in Washington, D.C., one of the groups filing the complaint. "If you're using data to make a hiring decision, there's an ethical obligation to tell the individual why you made that decision -- especially if the information may not be correct."

infographic Tapping Technology

Notwithstanding the pitfalls of the Internet, technology does provide some relief to those looking for speedy ways to identify falsehoods and root out those hiding a criminal past.

Some system designers are partnering directly with screening companies to ensure that data flows smoothly from an employer's human resource information system to a background screening company.

"If we can get data directly out of an HR system and don't have to read it off a fax or decipher someone's handwriting, we avoid the potential for error and save time," Capwell says. He can then send the information electronically to court researchers anywhere in the country for verification.

Streamlining the process even further, a few large data brokers, including Little Rock, Ark.-based Acxiom and Alpharetta, Ga.-based ChoicePoint have gotten into the applicant tracking business and are now marketing all-in-one applicant tracking and background checking systems.

Anne Nimke of Pinstripe Talent in Brookfield, Wis., says she depends on SkillSurvey, an online reference collection tool that allows potential employers to send a preselected set of screening questions to candidates' references via e-mail. The tool then scores the responses.

Other resources employers can access online include employment verification tools available on the web sites of the Social Security Administration and the Department of Homeland Security.

Employers and background screeners also are increasingly relying on the Internet to obtain the signature necessary to conduct a background check. Many companies get authorization with a click-through process. More-advanced software allows an applicant to scribble a signature by clicking and dragging the mouse.

Rita Zeidner is manager of the SHRM Online HR Technology Focus Area.

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