Social Networks Background Checks: The Ghost Protocol

W. Barry Nixon, SPHRPreemploymentDirectory.com

W. Barry Nixon, SPHR

• COO, PreemploymentDirectory.com, the most comprehensive directory of background screening firms online.

• Co-Author, Background Screening & Investigations: Managing Hiring Risk from a HR and Security Perspective

• Author, Comprehensive Guide for Selecting a Background Screening Firm

• Publisher, Annual Background Screening Industry Buyers Guide and The Background Buzz, the leading publication for professional background screeners

• Contact Information: wbnixon@aol.com or Telephone – (949)770-5264

The Social Media Train Has Left The Station

• The number of adults 25 and older using Social Network sites is growing faster than teenage and college students.

• The amount of Facebook users has increased from 10 million, to upwards of 500 million.

• In March 2011 LinkedIn announced that it now has 100 million users. and there is no turning back the clock at this point.

Les Rosen, CEO, Employment Screen Resources,' a leading background screening expert, there's no hotter trend in background screening than social media. "Through social media, for the first time perhaps in human history, employers are able to literally look inside someone's head. It's a real treasure trove of information."

A Chance to Look Behind the Interview Mask

• Social networks offer an intimate glimpse into peoples’ lives – what they are thinking, their personal views and how they behave – through their own writings and pictures.

• Businesses have an opportunity for an unprecedented look into the life of applicants.

• Businesses have the chance to gain valuable insights regarding who an applicant really is beyond their well-prepared interview mask.

Why Employers Rejected Certain Job Applicants From Information Found Online

• Candidate posted provocative or inappropriate photographs or information

• Candidate posted content about them drinking or using drugs • Candidate bad-mouthed their previous

employer, co-workers or clients • Candidate showed poor communication

skills • Candidate made discriminatory comments • Candidate lied about qualifications • Candidate shared confidential information from previous

employer

CareerBuilder.com (2010) disclosed the following reasons

More Firms Are Using Social Media for Screening Candidates

• 76% of companies are using or plan to use social media sites for recruiting [or screening] in 2011 (SHRM)

• ExecuNet surveyed 100 executive recruiters and found that 77% regularly use search engines during the screening process and 35% have eliminated job candidates based on information found on the Internet (Peluchette and Karl, 2010)

The Ghost Protocol

• Social media background checks have been conducted under the radar of most organizations.

• Vast numbers of Hiring managers are, at minimum, doing searches on Google of applicants and candidates. Its to simple for them to not do it.

From the 2011 HireRight Benchmarking Survey

9

Social media use growing– Majority of companies report use

of social media for sourcing candidates (54%)

– 11% report using social media information for screening, while 10% are planning on this type of use

© 2011 HireRight, Inc. All Rights Reserved.

2011 HireRight Employment Screening Benchmarking Survey © 2011 HireRight, Inc. All Rights Reserved.

www.hireright.com/benchmarking

Use Social Media for Background Checking?

Social Media Tools Come With Some Challenges

1. Information considered during the selection process should be relevant to evaluating the applicant’s potential to perform the job and free of discriminatory information.

2. The validity of the information posted, meaning was it posted by the applicant or someone else? Were the statements viewed actually made by the applicant or someone else.

3. Violation of the applicant’s privacy rights.4. The requirement to follow the principles of the Fair Credit Report Act

(FCRA) which basically include getting permission, giving notice, providing transparency of the information obtained, advising the applicant if an adverse action has resulted from the employment screening process and providing an appeal process that allows the challenging of inaccurate information.

Risky Business

“Employers often don't realize that the information they're gathering may not only be completely inaccurate, but also legally risky . . . to use as a consideration in employment decisions."

Kevin Connell, CEO and founder of AccuScreen.com (http://www.accuscreen.com/).

To Search Social Network or Not?

? ? ? ? ? ? ? ? ? ? ? ?

We believe the question has changed from ‘should you use social network to screening applicants’ to ‘how should you use social networks to screen applicants in a professional and legal manner?’

Damned If You Do, Damned If You Don’t

• Les Rosen, Employment Screening Resources makes an interesting observation in the article Social Media Background Checks Conducted by Consumer Reporting Agencies Subject to Same Fair Credit Reporting Act Rules, : failure to review such sites [social networks] could be evidence of negligent hiring if such a review could have revealed negative information relevant to the employment decision, and the employer is later sued for the acts of the employee.

Lester Rosen, Attorney and CEO of Employment Screening Resources (ESR) & Thomas Ahearn, ESR News Editor

Create a Firewall Between Hiring Manager and Social Media Information

• The person conducting the research should have clear guidelines about what information is relevant to the job opening.

• Any potentially relevant information should be shared with a neutral member of management who can assess the information fairly without risking prejudicing the hiring manager prematurely. (This reviewing authority might be a senior member of HR, Security, Risk Management, Legal, or perhaps even someone in the chain of command above the hiring manager. )

• Could use third party background screening firm whom you have provided explicit guidance regarding should and should not be reported.

Mike Coffey, HRM Today

Using a Background Screening Firm

1. Clearly identify the information you are seeking and be absolutely certain that the information sought does not violate any civil rights, discrimination or privacy laws.

2. Be very clear to advise the screening firm to only report legally permissible information for use in a hiring decision. It is your job to define this information. Don’t assume they know because should something go wrong you are still potentially liable.

Using a Background Screening Firm

3. Start with the understanding that the Federal Trade Commission has ruled that searches of social media for employment purposes are considered to be a consumer report. This means the FCRA must be followed.

A. This starts with getting the applicants’ permission by having them sign an ‘Acknowledgement and Consent Form’ authorizing the client and their agent to conduct a background check.

B. Spell out in unambiguous language that the background check will include a search of social networks for relevant information pertaining to their fit with the organization’s culture and their possession of the skills, knowledge and behaviors appropriate to succeed in the job.

Using a Background Screening Firm

C. Provide a copy of any information of concern with the applicant and give the applicant the opportunity to challenge the accuracy of the information (just as they can with a other background checking information).

Take Extra Steps in Giving Advance Notice

Notify applicants ahead of time regarding your policy and practice to search the Internet and use social networks on your company intranet job board, with job postings (internal and external) and/or with notification of interview. Remove all possibilities of surprises and eliminate any expectation of privacy.

Using a Background Screening Firm

4. Require the screening firm to validate that information found online is about and was generated by that person. If there is doubt tell them not to report it or dig deeper for an identity match.

Commit the extent of validation that you want performed to writing to ensure that you and your screening firm are on the same page using non ambiguous language.

For example, you may want to require the screening firm to have a live person to double check any negative results to ensure an identity match and document the follow up back up validation process.

“You want to do all you can to avoid an Oops!”

CRAs Need To Have “Reasonable Procedures To Assure Maximum Possible Accuracy.”

• How does a background screening firm or CRA determine if the information found on the Internet about job applicants is authentic – in other words, true?

• How does a background screening firm or CRA know what information actually was posted by the applicant?

• If a social media site contains negative information, how will the screening firm go about verifying that it is authentic and belongs to the applicant?

FCRA section 607(b)

Some New Suspects• Online Identity Theft - false postings under another person’s

name on the Internet.• Cyber Slamming -negative information posted anonymously

online.• Fake Websites - that do not belong to the supposed owners

and people commit defamation without anyone knowing their real identity.

• Computer twins - most people have people with the exact same names online.

Social Media Background Checks Conducted by Consumer Reporting Agencies Subject to Same Fair Credit Reporting Act Rules, By Lester Rosen& Thomas Ahearn, ESR News Editor

Using a Background Screening Firm

5. Only use public profiles that are available. Under no circumstance should you use ‘old school spy tactics’ such as social engineering, hacking into accounts, ‘friending’ people on Facebook or other subterfuge or deceptive techniques.

Do not ask for an applicant’s password.

Using a Background Screening Firm

6. Create a background checking policy that addresses fair and uniform guidelines for conducting online searches.

Some of the items that a policy should cover include:• Pre define the types of information you want screening for and the criteria to

be used for screening. (Remember you are looking for relevant, work related information only.)

• You probably need to know about threats of violence, hate messages against minorities or ethnic groups, a pattern of disparaging comments about previous employers, or misleading information about their college degree.

• Define the scope of such searches. • The policy should also address the point in the hiring process when the

screening will take place.• Identify the sites that will be search.

Later is Better

• As a general rule, the later in the hiring process social media searches are used, the less open an employer may be to suggestions that matters viewed on the Internet were used in a discriminatory fashion.

• The most conservative approach is to not use the Internet for a social media search until AFTER there has been a conditional job offer.

Social Media Background Checks Conducted by Consumer Reporting Agencies Subject to Same Fair Credit Reporting Act Rules, By Lester Rosen& Thomas Ahearn, ESR News Editor

Using a Background Screening Firm

7. Screen the same sites for everyone and maintain the list of sites you screen – determine which sites you think are the most relevant to look at and don’t alter the list just because of the candidate.

(In other words – if you feel like Facebook is really a social environment without much relevant job information – don’t suddenly search it for the candidate that has a weird tattoo.)

Using a Background Screening Firm

8. Keep detailed documentation and adhere to e-discovery requirements.

Off Duty Behavior

• Employers need to be concerned if information found on the Internet violates state laws concerning legal “off duty” conduct.

Advance Notification

Notify applicants ahead of time regarding your policy and practice to search the Internet and use social networks. Remove all possibilities of surprises and eliminate any expectation of privacy.

Take an Extra StepAs a final protection, an employer may consider having the in-house or external reviewer contact the applicant with any potential negative information found online before it is passed along to the decision maker. This will allow the applicant the opportunity to dispute the accuracy, authenticity or applicability of the information without muddying up the waters.

Social Media Background Checks Conducted by Consumer Reporting Agencies Subject to Same Fair Credit Reporting Act Rules, By Lester Rosen& Thomas Ahearn, ESR News Editor

Social Networks Are Here To Stay

• The temptation for hiring professionals and managers to use social network information to help make good hiring decisions is huge and essentially unavoidable.

• Prepare for the inevitable by implementing a sound background screening policy and practices to address social network checks.

• And, realize more social networks are coming.

Resource Center• W. Barry Nixon – wbnixon@aol.com• ‘Online Social Media Employment Screening Comes of

Age,’ PI Magazine, October 2011 Edition; www.PIMagazine.com

• Background Screening & Investigations: Managing Hiring Risk from a HR and Security Perspective, Available at Amazon.com

• PreemploymentDirectory.com

Background Screening Firms:

AcccuScreen HireRight

Corporate Screening OpenOnline

Employment Background Screening Pinkerton Screening Services