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Legal Experts Stress That Social Media Background Checks Create Risks

May 5, 2011
Related Topics: Internet, Pre-employment Assessment and Testing, Background Checks & Investigations, Risk Management, Miscellaneous Legal Issues, Interviewing, Social Media, Latest News
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Employers that use social media sites to perform background checks on job applicants, investigate employees or make other employment-related decisions could be violating employment and privacy laws, legal experts say.

“A lot of employers are Googling away on their applicants. They just want to see what they can find on candidates,” said Tamara Russell, a lawyer at Barran Liebman in Portland, Oregon.

But performing an Internet search on a job applicant is akin to interviewing them, she said during a May 2 session on social media at the annual Risk & Insurance Management Society Inc. conference in Vancouver, British Columbia.

“You cannot ask certain questions online that you wouldn’t and shouldn’t otherwise ask during an interview,” she said.

To illustrate her point, she provided photos found online of a hypothetical job candidate named Jean Faluzi.

“If you did a Google search on this candidate and these pictures popped up, what’s the first thing that runs through your mind?” she asked.

Among the images that appeared were a photo of Faluzi smoking, one of her holding a sign protesting her husband’s imprisonment for marijuana use, another of her as a cancer survivor and one featuring her on a blog called “I am a Muslim woman.”

“Look at all the questions that you have asked without even opening your mouth,” she said. “A picture may be worth 1,000 words. But what do any of these pictures tell you about Jean Faluzi’s skills, her ability to do the job?”

Employers also shouldn’t base their hiring or firing decisions on what they unearth online, because of the prospect of mistaken identity, Russell warned.

“There are 14 LinkedIn Tamara Russells out there. Which one is me?” she asked. “You’ll find one of them is a judge in Colorado, and another one likes to take photographs of cats holding beer bottles and cigarettes.”

If you must use the Internet to research a candidate, get their permission first, and give them an opportunity to explain anything adverse that turns up, Russell advised.

Employers should be equally cautious about using information revealed in Internet searches as a basis for terminating employees, she said.

Also discussed was employee social media use.

To prevent employees from using such tools in a way that may tarnish an employer’s business or reputation, employers should adopt social media policies setting guidelines for how and which employees are permitted to use it, said Melissa Krasnow, a partner at Dorsey & Whitney in Minneapolis.

“I find it works best when all stakeholders are consulted and have a role in shaping corporate social media policy,” she said.

Employers also should review their liability insurance programs, including employment practices coverage, to make sure they are covered if they are sued by employees or job prospects in connection with the use of social media, said Chad Jackson, staff director of risk management at FedEx Corp. in Memphis, Tennessee.

Although the use of social media is relatively new, the risks it poses for employers are not. It’s simply a different venue, said Rennie Muzii, managing director at Marsh USA Inc. in Portland, Oregon.

Given that, it may not be necessary to purchase a special insurance policy to respond to social media-originated claims, he said.

“Just be sure your other insurance programs cover social media exposures,” he said, suggesting that risk managers hold such risks up against their existing insurance policies and “strain” them to see whether any “pass through.”  

Filed by Joanne Wojcik of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

 

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