Chris Miller

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.

The top reasons for performing employment background and drug screening today are to mitigate risk, improve the quality of hire, promote workplace safety and meet regulatory compliance requirements.

Even though employee screening has become more common, many organizations still tend to make many mistakes in their screening procedures and practices. These oversights can leave companies vulnerable. Following are six key mistakes companies routinely make:

Mistake 1: Not establishing a standard background screening policy

Just because a company conducts some form of background check does not mean that its recruiters or security professionals are performing the checks consistently or using the data appropriately. Having a standard written policy for every job title ensures that the same types of checks are always performed on like individuals and that data is used in compliance with all company, industry, state and federal regulations. It also avoids any appearance of discrimination.

Mistake 2: Not verifying employment and education

Sometimes the desire to quickly secure a seemingly good candidate can lead a company to accept resumé data at face value. This can be a big mistake. Roughly one-third of all resumés contain some kind of misrepresentation in terms of employment history, education or experience. In addition, “diploma mills” have grown to a $200 million industry and continue to expand. Even for jobs where education or experience is not critical to success, a misrepresentation can signal problems of character in a potential hire.

Mistake 3: Not checking vendors, contractors and temporary employees

One security director of a large multi-national company commented that it was illogical that he had to have a background check and an escort to see his CEO, since the man who serviced the green plants could walk into the CEO’s office any time unchecked and unescorted. One of the greatest vulnerabilities of companies today is among the large number of unchecked suppliers and temporary employees. The sad fact is that people with questionable backgrounds will eventually gravitate to industries where background checks are seldom performed on employees. Making background screening for temporary, contract and vendor-employed workers a standard policy for your company should be part of your company’s policy of internal controls.

Mistake 4: Not conducting international checks when required

Today’s talent pool is global. Even candidates who are U.S. citizens may have some portion of their education or experience that has occurred outside the country. It is just as important to verify international backgrounds as that which occurred locally. International background checking, however, is more complex and governed by many different local statutes, policies and procedures. Human Resources and Security professionals should seek out a competent international screening partner to leverage their country-specific knowledge and expertise and to ensure a quality, compliant process.

Mistake 5: Not protecting against negligent retention

If an employee causes damage or harm in the workplace and recent criminal activity, such as driving infringements or drug abuse could have been discovered by the employer prior to the workplace incident, the employer may be found liable for negligent retention. Conducting checks on all new hires, prior to duty, is essential. Keep in mind, also, that a lot can happen in the years after a new hire comes aboard. Companies should consider protecting themselves with periodic post-hire criminal checks and drug testing.

Mistake 6: Relying on manual internal processes

The more times a candidate’s background information is hand-entered into different forms or systems, the greater the chance for human error. Today’s companies can overcome these problems by seeking out a background screening process that is integrated into their recruitment software. Data from the recruiting solution can automatically populate the background screening request form of your screening provider and checks can be ordered at the touch of a couple keys with no need for faxing or duplicate data entry.

It is important to note that effective background screening requires human intervention and intuition on the screening provider’s side of the fence (criminal checks, for example, often require manual checks of court records and files), so be wary of fully automated systems that provide instant checks. Finding solutions that combine the best of automation and human investigation gives optimum return on investment.

Employment background screening is a far cry from the mom-and-pop detective service of old. Background screening services today are truly an extension of an organization’s security and recruitment departments. Avoiding these common oversights will help organizations get the full benefit from their modern background screening program.

Employee screening becomes more proficient every year, and yet most applicants fudge, dissemble and outright lie in new and unique ways on their resumes. Amazingly, many job applicants just don’t understand the seriousness of lying or attempting to hide information from prospective employers. Here are five of the most unbelievable lies that we have come across.

1. Falsifying the Degree or Credential Earned
With roughly a 20 percent discrepancy rate in information provided by candidates regarding their education qualifications it’s important that companies understand the variety of ways applicants lie to claim unearned degrees. In many cases, candidates may forge diplomas, purchase a degree from a diploma mill, lie about their major or may have attended classes but never graduated. Other times, applicants will fake their educational qualifications by trying to pass off degrees earned by family members as their own. Such is the case with an applicant who submitted “proof” of his education by producing a valid degree in his name. However a problem arose as the date on the degree was only five years after the applicant was born. The candidate fessed up—the diploma belonged to his father, whom he was named after!

2. Inflating Salary History or Title Held
It’s no surprise that some candidates who are not qualified for a position may lie about titles held to claim expertise and experience they do not have, and they inflate their previous salaries to negotiate better packages than they may be able to obtain otherwise. In one case, a candidate claiming to have spearheaded many significant merger and acquisition deals at a prior employer, applied for a top finance job at a Wall Street brokerage that was opening an office in Japan. As it turned out, his background check confirmed that he had indeed been highly involved with each of the noted deals—as the staff interpreter!

3. Concealing a Criminal Record
The most common way candidates with a criminal background attempt to avoid detection, is by changing details such as their date of birth or spelling of their name. It’s important that employers conduct very thorough criminal searches, going beyond the basic data provided, in order to confirm the results and avoid hiring a potentially dangerous individual. For example, a search run on Frank T. Booker (names have been changed to protect the not-so-innocent), DOB 8/6/72, came back clean, but an additional search of F Booker resulted in a found record for a Fred T. Booker, DOB 8/26/72, for six DUIs and two felonies.

4. Exaggerating Dates of Past Employment
It’s extremely common for applicants to lie about their dates of employment, and in fact, some studies show as many as 35 percent of all resumes include discrepancies. Candidates often attempt to stretch the truth on dates to cover gaps in employment they may not want to explain. For example, one candidate extended his end date at his previous company by six months in order to hide the fact that he spent those six months serving a jail sentence!

5. Hiding a Drug Habit
About half of Americans admit to having used an illegal drug in their lifetime, so conducting a proper drug test should be a standard step in any screening program. There are numerous ways drug users attempt to beat the drug test, and some go to great lengths. In fact, a recent determined applicant decided to shave his entire body just a few hours before showing up for his scheduled hair sample drug test. A more common way for drug users to avoid detection is by adulterating their urine samples through dilution, addition of other substances, or substitution of urine. What scheming applicants don’t realize is that today’s drug tests can identify these attempts and are more accurate than ever before in determining positive and negative results despite tricks and excuses.

Lying on job applications, if not downright fraud, at the very least provides reason to question an applicant’s character. With professional background screening best practices in place, employers can make the right hiring decision the first time.