background investigations in the information age€¦ · troutman sanders llp 600 peachtree st., ne...
TRANSCRIPT
Background Investigations in the
Information Age:
Presented By:
Stephen W. Riddell
Kristina N. Klein
Troutman Sanders LLP
600 Peachtree St., NE
Atlanta, GA 30308
www.troutmansanders.com
Using Social Networking Sites and Other Tools
to Conduct Background Checks
Risks and Benefits of Using Social Media
to Conduct Background Checks
Potential Benefits
• Access to information not on a resume
• Quick & efficient discovery of relevant information on candidates
• Insight into a candidate’s professional and personal characteristics
• Spot resume fraud
• Identify negative behaviors incompatible with workplace, like discriminatory remarks, sexually explicit photos or messages, and illegal drug use
• Identify positive attributes ideal for your company, like volunteer efforts, participation in industry blogs, and external recognition
What Social Media Can Reveal
What Social Media Can Reveal
What Social Media Can Reveal
What Social Media Can Reveal
What Social Media Can Reveal What Social Media Can Reveal
CareerBuilder.com / 2012 Social Media
What Social Media Can Reveal
CareerBuilder.com / 2012 Social Media
What Social Media Can Reveal
What Social Media Can Reveal
CareerBuilder.com / 2012 Social Media
What Social Media Can Reveal
Potential Risks
• Two main legal problems:
1. Propriety of accessing candidate’s online
information
2. Permissibility of basing hiring decisions on
discovered information
• Critical question:
– What to do with social media information?
• State Legislation:
• Federal Legislation
• Facebook Statement of Rights and
Responsibilities
Asking for Social Media Passwords:
Going too far?
Status of Potential Law States:
Currently in Effect Maryland, California, Illinois, Delaware, New Jersey
Considering Connecticut, Massachusetts, Michigan, Minnesota, Missouri, New York, Ohio, Oregon, Pennsylvania, South Carolina, Washington
Potential Risks
Learning “Off-Limits” Information:
Age
Race
National origin
Religion
Sexual orientation
Medical conditions
Pregnancy status
Marital / familial status
Political affiliations
Union views
Potential Risks
• Disparate use among candidates
• Off-duty conduct / lifestyle statutes
• Invasion of privacy
• Stored Communications Act
• Fair Credit Reporting Act
• Defamation
• Accuracy
• Violation of Terms of Service
Hypothetical
Eddie applies for a position with your company. He meets
the necessary qualifications, and you’re ready to hire him,
but your assistant conducts a social media background
investigation to make sure he’s the right fit for the company.
The assistant does not disclose to you any protected
information, but tells you about a blog, called “Crazy
Eddie’s Adventures,” which reveals that Eddie is a smoker,
regular bungee jumper, has run with the bulls in Pamplona,
gone swimming with sharks, and jumped out of airplanes.
Practical Tips
• Determine whether benefits outweigh risks
• Search public content in a uniform manner and use equally
among candidates
• Search only public content about the candidate
• Obtain candidate’s consent
• Be skeptical of accuracy and aware of context
• Avoid decision maker involvement in process
• Keep written documentation
Questions to Ask
• What social media information should be
highlighted?
• Is the information relevant to the hiring decision?
• Does the post contain information that cannot be
legally considered in hiring decisions, such as
protected and lawful off-duty conduct or disabilities?
• Does the post contain information that clearly
disqualifies the candidate from employment?
Outside Vendors
– Social Intelligence Corporation
For employers wanting pre-employment screening:
www.socialintel.com
– Reppler
For individuals who want to know how their online
image is perceived: www.reppler.com
Outside Vendors
• Internet search
• Generates a report
– Screened / filtered
– Summary of online
presence
– Positive + negative
• Includes information
about consumer
rights under the
FCRA
Outside Vendors
Outside Vendors
Outside Vendors
• Reduce legal exposure and administrative
inconvenience
• May 9, 2011, FTC sends “no action” letter to
Social Intelligence
• September 19, 2011, Senators send letter to
Social Intelligence with follow up questions
regarding accuracy and privacy
Questions for Outside Vendors
• How does the vendor determine the accuracy of
the information?
• How does it differentiate among candidates with
common names?
• Is it limited to publicly available information or
does it try to access restricted areas?
• Is it acting in compliance with relevant laws?
Practical Tips
When Using Outside Vendors
1) Make sure your notice and authorization documents
include social media
2) If a candidate is not hired based on social media
information, make sure the candidate receives a pre-
adverse action notice and a copy of the vendor’s
report
3) Once a final decision is made rejecting the candidate,
send a final adverse notice to the candidate. Include
the language required by the FCRA
Take-Aways
• Watch-out for increased scrutiny by Congress – regulation
is on the horizon
• Review how and why your company uses social media
• Consider the reliability of the information from social media
• Confirm compliance obligations, like FCRA
• Consult with an attorney before disqualifying a candidate
based on social media information
• Consider implementing or updating a social media
background screening policy
Questions?