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Facebook, Credit Checks, Criminal Records? Where the Law Stands on Employee Background Checks

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Facebook, Credit Checks, Criminal Records? Where the Law Stands on Employee Background Checks

By Caron_Beesley, Contributor
Published: July 11, 2012

You’ve probably heard about the controversy surrounding employers asking job applicants for their Facebook user names and passwords as part of the background check process. It sounds shocking, but it happens – particularly among law enforcement entities – but even among private sector employers who feel they have a reason to go that extra step to weed out potentially undesirable employees.

Unethical as it may seem, what does the law say about this?

Led by the state of Maryland, which became the first state to ban employers from asking for social media passwords, several other state legislatures are pressing for laws that prohibit this extreme form of background check.

At the federal level there is no law prohibiting employers from soliciting social media login information. However, the Department of Justice considers it a crime to violate social media terms of service. Check out Facebook’s Terms of Service and you’ll find it stated explicitly that users consent not to share their login information, solicit login information, or access the account of another Facebook user. So employers and applicants clearly need to tread carefully.

At the end of the day, asking a job applicant for their social media login is unethical and an invasion of privacy at the very least. It also exposes employers to discrimination lawsuits if an applicant can prove that information about their religious, political or sexual views on their social media profile was used to discriminate against them.

What would you do if someone asked you for yours?

Background Checks – What are Your Options?

Background checks have their place, but what are your options as a potential employer?

You can use several different types of background checks to build a profile of an employee, but the law varies on what information you can ask for, what you can do with it and when consent is required. If you run a criminal background check on an employee, for example, different states have different rules on how you can use that information. Also, if you are seeking to hire someone who will have fiscal oversight in your business, you opt for credit score check. By law, this requires the applicant’s consent.

To read more about the types of checks you can legally conduct, refer to SBA’s Guide to Employee Background Checks. In most instances, the following checks are worth considering:

  • Credit checks (currently used by 60 percent of employers, but remember that you must get the applicants consent according to the Fair Credit Reporting Act)
  • Drug tests
  • Past employment
  • Criminal background (check with your lawyer so you are compliant with state laws)
  • Driving records (if the job demands this skill)

For many small businesses, this scope of testing is downright time-consuming. If you feel you need to go beyond what’s on an applicant’s resume or contained in their letters of reference, consider hiring a private screening firm. Not only will they do the legwork for you, they’ll also ensure any checks are done within the law.

The Bottom Line

The turnover costs of replacing an experienced worker who doesn’t work out can be 50 percent or more of that individual’s annual salary; more if you are seeking specialized skills, high qualifications, and experience. (Source: AARP).

Just because today’s job market is considered a buyer’s market doesn’t mean it isn’t worth doing your due diligence.  But do it ethically and within the law. It may save you money in the long run.

Related Resources

 

About the Author:

Caron Beesley

Contributor

Caron Beesley is a small business owner, a writer, and marketing communications consultant. Caron works with the SBA.gov team to promote essential government resources that help entrepreneurs and small business owners start-up, grow and succeed. Follow Caron on Twitter: @caronbeesley

Comments:

Our California-based law firm handles matters such as these. We advertise and collect information for applicants who have been subjected to unfair background screenings at www.FCRAClassAction.com and, while we can’t promise anything, we have had excellent results in past cases.
It is only fair for employers to do their due diligent checks - after all they are taking a gamble with each new employee. It's hard for employers to discern the real character of a person through two pages of resume and one 30min interview. Cost savings mentioned are true - time spent training employees and resources needed to replace employees can be high.
I agree that employers need to do their due diligence. Today, almost 90% of employers do background checks. Background checks are a critical foundational element that can be supplemented with research in the public domain (such as social media), reference checks, and even advanced more rigorous background checks. Companies should gauge their exposure and right-size their screening process. For example, some industries have major risk exposure, whether it be fraud or workforce injuries. In these industries (such as railroad, utility, and banking), more rigor is necessary.
I think this is too much if Facebook account will be use as employment screening. Criminal background checks I think is the most effective on screening potential employee or perhaps credits reports.
I think asking for Facebook login is not only extreme, but illegal and would not ask this of anyone I might employ. I also do not agree with credit checks unless that person is handling finances. Furthermore, I believe drug testing is a violation of constitutional rights, and is only required in jobs where a person is operating heavy machinery, maybe. Criminal background checks are also being too scrutinized. Some people do not know how to decipher them properly and some people then form incorrect judgments about people. I think the amount of years back an employer can go should be limited, and limitations dependent upon the security level of the job required.

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