Social Media and Employment Background Checks

It's almost too tempting.  And too easy.  And too inexpensive.   With little or no effort, you can use the Internet to learn more about candidates for open positions in your nonprofit organization.  The more you know about the candidate, the better, right?  Besides, who will know?

For that matter, why not check the background of current employees to see what they are up to.  Are they bashing the nonprofit online?  Are their off-hours activities reflecting poorly on the organization?  Are they making purchases that they cannot afford on their paltry salary?

As is the case with so many shortcuts, there are a number of problems and risks that arise from these kinds of social media background checks carried out by employers and prospective employers.  Such background checks can be traced in many cases, and lay the groundwork for claims of unlawful discrimination, among other things.  For example, a terminated employee or job applicant may assert that they were fired or denied employment for being gay, being in the wrong political party, for having a health problem, having children to care for, or innumerable other reasons, and that the employer wrongfully discovered these things through a social media background check.

Additionally, background checks on current and prospective employees probably amount to a “consumer investigative report” that is subject to increasing state and federal law and regulation.  (See the Fair Credit Reporting Act and Civil Code section 1786-1786.2.)

It is important that all nonprofits (and other employees, for that matter), consider the following recommendations:

1.  Adopt a policy prohibiting employees, other than the designated human resources professional, from authorizing or conducting any background checks on current or prospective employees.

2.  If conducting a social media background check, it is recommended that the background be checked by an independent, qualified professional (yes, numerous background check companies do exist).

3.  If a nonprofit or company wishes to do its own background checks using social media, it should consider – (at a minimum) – adopting the following guidelines:

¡  Decide beforehand what you are looking for (for example, illegal activity)

ú   List the topics to be examined

ú   Review the topics with counsel or HR expert

¡  Limit checks to finalists only

¡  The “searcher” and decision maker should be different people.  The searcher should not be a hiring manager.

ú   Ignore all materials not on the approved list of topics

¡  Maintain documentation of what was searched, topics and findings

¡  Inform the job applicant/employee that you will be doing the search

¡  Share search results with the candidate/employee if a negative determination is made

¡  Educate your staff concerning the risks of informal background checking

Questions relating to this subject should be referred to a professional human resources advisor or legal counsel.