Employers can conduct background checks using websites like Facebook, MySpace, and Google under federal law, but there are several issues they should keep in my mind before they do, according to two employment attorneys.
Brian Van Vleck and Anthony Zaller of the Los Angeles-based law firm Van Vleck Turner & Zaller said that rise in popularity of social networking sites like Facebook and MySpace and search engines like Google has also prompted interest among employers that want to use them for background checks and recruiting purposes.
At the same time, there is some uneasiness among HR professionals because they are concerned that the practice could expose their companies to additional liabilities because the sites contain so much personal information about the individuals who use them.
They both noted that it will take some time before the law catches up with the advances of the Internet. Van Vleck said that he tells his clients that when dealing with the Internet, employers must think about many of the same issues they already face, such as being careful to avoid attaining and using information in a discriminatory way, ensuring that they don’t break privacy laws, and making sure the information obtained is accurate (“you can’t believe everything you see on the Internet”). Both attorneys stressed that employers should also check state and local law before conducting any background check online.
Zaller said that under federal law, employers can generally use social networking sites for background check provided that:
1. The employer conducts the background check themselves. He said that if the employer uses a third-party (consumer reporting agency) to conduct the checks, the information found on social networking sites could fall under the Fair Credit Reporting Act, which has disclosure and notice requirements.
2. The site is readily available to the public. He also noted that it’s important to read the terms of service posted on the sites.
3. The employer doesn’t have to create an alias to gain access. If an employer uses subterfuge to gain access, the company could face liability.
4. The employer doesn’t have to provide false information to gain access to the sites. He said using false information to gain access could come back to bite an employer in court.
5. The employer doesn’t use information for discriminatory purposes in violation of federal, state, or local law. If an employer, for example, discovered that an applicant is gay when the employer used Facebook or MySpace to conduct a background check, and that information was then used to deny employment, an employer could face a discrimination lawsuit if the state bars discrimination based on sexual orientation.