Agatha Christie had a novel take on invention being the mother of necessity. She disagreed and said, "[I]nvention, in my opinion, arises directly from idleness, possibly also from laziness. To save oneself trouble." She may have been onto something when you think about businesses that are turning to outside vendors to research employees and job candidates for them. Whether or not these outside vendors are the best solution, however, remains to be seen.
1.Companies Should Have An Internal Procedure For Researching Job Candidates And Employees On The Internet
We
recommended earlier this year that businesses establish an
internal procedure for making employment decisions based on
Internet research, so they would not run afoul of state and federal
laws that prohibit job discrimination based on protected factors.
The protected factors include, for example: (1) Race, color,
national origin, religion and gender under Title VII of the Civil
Rights Act of 1964; and (2) Sexual orientation, marital status,
pregnancy, cancer, political affiliation, genetic characteristics,
and gender identity under California law. Most states have their
own list of protected factors, which should be considered depending
on where your company has employees.
Not surprisingly, the legal risks of making decisions using the
Internet have become a real concern for businesses, especially when
you consider that 54% of employers surveyed in 2011 acknowledged
using the Internet to research job candidates. The actual number of
employers using the Internet is probably higher, and sometimes
companies may not even be aware that their employees are
researching job candidates and factoring that information into
their evaluations. This is yet another reason to establish an
internal procedure for researching job candidates, and
communicating your procedure to employees who are participating in
the employment process.
There is nothing wrong with researching people on the Internet so
long as it is done properly. The Internet has a wealth of useful
information, some of it intentionally posted by job applicants for
employers to consider such as LinkedIn profiles.
With this "necessity" to do Internet searches properly,
some businesses have turned to outside vendors to do the research
for them, and, thereby, try to reduce their legal exposure and the
administrative inconvenience of doing it themselves. At least one
of these vendors has received letters concerning its business
practices from the Federal Trade Commission ("FTC") and,
more recently, two U.S. Senators.
2.The Business Practices Of Outside Vendors That Provide Social Media Background Checks Are Being Examined For Compliance With Privacy And Intellectual Property Laws
On May 9, 2011, the staff of the FTC's Division of Privacy
and Identity Protection sent a "no action" letter to Social Intelligence Corporation
("Social Intelligence"), "an Internet
and social media background screening service used by employers in
pre-employment background screening." The FTC treated Social
Intelligence as a consumer reporting agency "because it
assembles or evaluates consumer report information that is
furnished to third parties that use such information as a factor in
establishing a consumer's eligibility for employment." The
FTC stated that the same rules that apply to consumer reporting
agencies (such as the Fair Credit Reporting Act ("FCRA"))
apply equally in the social networking context. These rules include
the obligation to provide employees or applicants with notice of
any adverse action taken on the basis of these reports. Businesses
should also be mindful of similar state consumer protection laws
that may be applicable (e.g. California Investigative
Consumer Reporting Agencies Act).
The FTC concluded by stating that information provided by Social
Intelligence about its policies and procedures for compliance with
the FCRA appears not to warrant further action, but that its action
"is not to be construed as a determination that a violation
may not have occurred," and that the FTC "reserves the
right to take further action as the public interest may
require." This FTC "no action" letter was reported
fairly widely, and probably increased the comfort level of
businesses that wanted to use an outside service for Internet
background checks.
On September 19, 2011, Senators Richard Blumenthal (D-Conn) and Al
Franken (D-Minn) sent a letter to Social Intelligence with 13
questions regarding whether the company is taking steps to ensure
that the information it is gathering from social networks is
accurate, whether the company is respecting the guidelines for how
the websites and their users want the content used, and whether the
company is protecting consumers' right to online privacy. The
letter raises some legitimate concerns, and requests a prompt
response from Social Intelligence to the questions presented.
3.Legal Assurances That Your Company May Want To Seek If Using An Outside Vendor
Some of the questions also warrant due consideration on the part
of businesses receiving reports from outside vendors about how much
weight they want to give the information provided. Further, what
the business may want in the form of legal assurances from the
outside vendor that no laws (e.g. FCRA, privacy,
copyright, or other intellectual property laws) have been violated
in gathering the information or providing screenshot copies of
pages from social networking sites.
Some of the questions from the Senators which raise these concerns
include, for example:
1. "How does your company determine the accuracy of the
information it provides to employers?" [Social Intelligence is
reportedly collecting social networking activity dating back 7
years, and, therefore, may capture something that was later
removed, or was a "tag" post through a picture that the
job candidate was not responsible for making public, and may have
removed once it came to his attention.]
2. "Is your company able to differentiate among applicants
with common names? How?" [e.g. Have they researched
the correct "Jane Smith" of the hundreds on Facebook
since social security numbers or other specific identifying
information is not useful on social networking sites as it is with
the standard background check.]
3. "Is the information that your company collects from social
media websites like Facebook limited to information that can be
seen by everyone, or does your company endeavor to access
restricted information."
4. "The reports that your company prepares for employers
contain screenshots of the sources of the information your company
compiles...These websites are typically governed by terms of
service agreements that prohibit the collection, dissemination, or
sale of users' content without the consent of the user and/or
the website..... Your company's business model seems to
necessitate violating these agreements. does your company operate
in compliance with the agreements found on sites whose content your
company compiles and sells?"
5. There appears "to be significant violations of user's
intellectual property rights to control the use of the content that
your company collects and sells. .... These pictures [of the
users], taken from sites like Flickr and Picasa, are often licensed
by the owner for a narrow set of uses, such as noncommercial use
only or a prohibition on derivative works. Does your company obtain
permission from the owners of these pictures to use, sell, or
modify them?"
4.Conclusion
Establishing an internal procedure for using the Internet to make employment decisions is one more piece of a sound ethics and compliance program that addresses how your company is using social media. If using an outside vendor to perform social media background checks is part of that policy, you should assure yourself that the company is acting in compliance with the relevant laws.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.