Viewpoint: Conduct Careful Background Checks for Racism

​In a time of a pandemic, racial tensions and economic disruption, employees increasingly use their off-the-clock time to make controversial political and social statements on social media. These comments may reflect negatively upon their employers, forcing companies to respond quickly by firing transgressors, publicly distancing themselves, or instituting training or new policies to demonstrate their commitment to inclusion and diversity.

Following racially fraught incidents, checking for evidence of racism has become a key litmus test for corporate recruiting and hiring. Companies can no longer afford the fallout of installing candidates with problematic pasts in top positions.

The balance between personal opinion and employer responsibility is at the heart of the Aug. 19 decision in Marquardt v. Carlton by the 6th U.S. Circuit Court of Appeals. The court ruled that an emergency medical services (EMS) worker fired by the city of Cleveland was engaging in speech about a "public concern" when he posted racially offensive and derogatory statements about the police shooting of 12-year-old Tamir Rice in 2014. The court said a lower court would need to decide whether the EMS worker's free speech interests as a public employee outweighed the interests of the city in the efficient administration of its duties.

For private-sector employers, hiring workers with any hint of racism in their past—or in their social media posts—comes with risk, regardless of their position. That risk is magnified when a new hire will have management responsibilities. An allegation of discrimination or harassment in the workplace could quickly bring to light a comment or an act that the hiring company should have vetted. It will be Exhibit 1 for a jury in a negligent-hiring lawsuit. Negligent hiring is a common-law claim asserting that the employer knew or should have known that an employee posed a risk. It's the reason why HR professionals should screen candidates carefully before making job offers and conduct background checks for key positions.

Understand Constraints

Using Google to research job candidates should be a no-brainer. We find recipes, get driving routes and obtain medical information with the click of a few buttons, so what's wrong with surfing the Web for applicants' social media info?

A few things, it turns out.

According to a 2018 CareerBuilder survey, about 70 percent of employers polled reported that they use social media to screen candidates during the hiring process and 43 percent said they use social media to check up on current employees. Social media accounts are almost always in the top five search results on Google. Recruiters and HR professionals should therefore be comfortable doing Internet searches, although they should also exercise discretion.

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In 26 states, employers are not allowed to ask applicants for their social media login information, nor can they require candidates to call up their social media pages or change the privacy settings to provide the employer with access to their pages. The laws apply only to accessing a candidate's private social media accounts, noted Los Angeles trial attorney Gerald Sauer. "There is no expectation of privacy with respect to public accounts on Facebook, Twitter and LinkedIn," he said, "but this really is a slippery slope. You can't use publicly available information to discriminate against someone in a protected class, so make sure your use of their public information is for a legitimate, legally permissible purpose."

A lot can be discovered via a simple Google search, but for some positions, undertaking a much more comprehensive background investigation is appropriate. A qualified investigator can glean a great deal about a person by examining such things as posting histories, groups, online comments and Twitter feeds, and the investigator can be especially helpful for looking into key managers and company leaders.

When working with an outside investigator, it's important to understand the scope of the investigation before commissioning it.

"Many background checks are done by a lower-cost workforce in another country," explained Harry Kazakian, a licensed private investigator with expertise in pre-employment background checks. "These resources are usually unfamiliar with the U.S. legal system and the differences among state laws. They're neither expected to nor set up to invest the time and manpower required to thoroughly review a candidate's social media profile and other communications outlets that are likely to reveal signs of the person's character."

Be Thoughtful

If conducted for the wrong reasons, social media screenings can result in litigation. An employer that refuses to hire an applicant because of his or her political views will have a hard time showing that this relates to workplace values or safety. At the same time, a post that belittles members of protected classes or one that disparages the company or its industry is clearly tied to workplace values.

Before rushing to type a candidate's name into a Web browser, Sauer advised, HR professionals should think carefully about their goals and intentions for doing the search. Consistency is key.

"Decide what will be a potential disqualifier before you look at a single resume," he said. "Make a checklist of red flags for the position—racism, misogyny, religious bias—and spell out the reason it's on the list."

It's also important to decide how far back you want to look and to use the same window for all of your searches.

In addition, make sure hiring managers are not conducting the investigation. "Hiring managers should not be Googling job candidates," Sauer said. "They should not be seeing information that is unrelated to the position but that could color their view of the applicant."

Limit Searches

Good background checks come at a price. Whether done in-house or through an outside investigator, they consume both time and money. Kazakian said there's no benefit to Googling hundreds of applicants for a single position.

"Wait until you've narrowed your search down to a handful of candidates," he said. "Once the pool has been winnowed down, a Google search of candidates is a good use of your time."

For many lower-level workers, this level of due diligence is probably not warranted. "It makes no sense to exhaustively investigate a grocery store clerk," he said. At the same time, the nature of a position—working with children or other vulnerable people—might call for a thorough and detailed investigation.

Respond Appropriately

Problematic posts from job applicants or current employees could create not just dissension in the workforce, but major trouble for companies that don't respond appropriately. Companies must take offensive posts seriously and act promptly. An applicant whose social media includes pictures of cross burnings or swastikas is a clear and present danger. Even less-offensive acts, such as liking others' posts or reposting them, should be a red flag. In a diverse workforce, regardless of position, these candidates could be the proverbial match in the tinder box. To hire without doing more homework or confronting the issue head-on is reckless. 

In 2018, a registered nurse was fired from his job at a hospital in Olive Branch, Miss., after he appeared at a polling place wearing a T-shirt that featured a noose and a Confederate flag. The nurse had previously managed to get two jobs directly dealing with people's lives in the majority Black community. Although no allegations had been raised about mistreatment or endangerment of patients, it is fair to ask how, in this age of social media, his previous employers failed to screen for bigotry during the hiring process.

After pictures were posted of participants in the 2017 white nationalist demonstrations in Charlottesville, Va., hot dog restaurant Top Dog was pressured into firing an employee at its Berkeley, Calif., location whose face appeared in those photos. Within hours of the post, Internet users had correctly identified the employee, where he was from and where he worked, and they called on Top Dog to let him go.

See the Big Picture

Deep social media research will tell only part of the story. It's important to understand the context and timing of both words and actions. "Candidates must be interviewed," Kazakian said. "They must be in front of the recruiter, speaking directly with the recruiter, making eye contact and answering all questions. Even then, you might not pick up everything."

If your investigation has uncovered something problematic, present it to the candidate and ask him or her to tell you about it. If the applicant expresses surprise that his or her social media accounts were reviewed, Sauer advised telling the candidate that the company handled the search itself and was under no obligation to get permission to search publicly available information. If a third party conducted the search, then the search must also be limited to publicly available information, but you must follow the notice, consent and adverse notification rules of the Fair Credit Reporting Act.

People make mistakes and are capable of change. If a search uncovers problematic content, confront the candidate with his or her own words and actions, and then listen carefully to the answers. Refusing to hire without knowing the full picture is shortsighted. The response you want to hear is "Let me explain the circumstances of that post and what I've learned since then." This candidate is acknowledging the past and showing that he or she has learned and grown since then. If the candidate is otherwise qualified for the position, use what you know to help inform any additional training you might want to provide.

Invest in Change

It has always been the employer's responsibility to do appropriate due diligence before hiring workers, to provide a safe and respectful workplace for all employees. But in this new day of heightened focus on social injustice, symbolized by the Black Lives Matter and #MeToo movements, companies cannot afford to be tone deaf. They must respond promptly and decisively to what's happening in the world; they must protect both their workers and their bottom lines.

Background checks and due diligence are important parts of changing the workplace, but they're just first steps. Employers must commit to diversity and inclusion at all levels—from mailroom to boardroom—through training, communications and values.

Terry Kaufman is an attorney who served as in-house counsel to large technology companies. She handles legal media outreach for Newsroom Public Relations and is based in North Carolina.