EmployeeScreenIQ Blog

 The following story isn’t anything new to our readers.  We’ve stated time and time again that employers should not use social networking sites as a way to investigate job candidates because the information you find may not be truthful in nature.  How do you know that the Facebook profile filled with bad language and borderline inappropriate photos you are looking at is your candidate’s creation and not the invention of a former friend, spouse or co-worker with an ax to grind?  Denying someone a job based on information found on a social networking site could be asking for trouble. 

But what about offering someone a position with your company based on the favorable information found in their profile?  This section of the article peaked my interest:

“On the other hand, some candidates are doing a good job of presenting their professional side when posting online. Half of those who screened candidates via their social networking profiles said that they got a good feel for the person’s personality and fit within the organization. Other employers said that they found the profiles supported the candidates’ professional qualifications or that they discovered how creative the candidate was. Solid communication skills, evidence of well-roundedness, and other people’s good references (we assume this one came from LinkedIn) helped boost people’s credentials, too.”

With all of the press surrounding employers using sites like Facebook, MySpace, LinkedIn and Twitter to screen job applicants, it’s only a matter of time before applicants catch on and create fake profiles to make themselves look more qualified and professional than they really are (and maintain their real profiles under a pseudonym known only to the people they want to know).  And those references you see on LinkedIn – I could have a handful of glowing references on my profile by the end of the day just by sending a mass text to my old high school and college buddies.

Employers - Don’t believe the hype about how great social networking sites are to screen candidates.  Can you imagine having to explain to your boss: “Well, their facebook profile looked okay…” 

Click to read “Uncouth Facebook postings closing doors for job candidates”

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We can always count on Molly DiBianca of Delaware Employment Law Blog fame to offer an insightful opinion when it comes to the legality of social networking and employment practices.  Earlier this month we posted a entry by Ohio Law blogger Jon Hyman alerting employers of an opinion out there suggesting that recommending an employee on Linked could be problematic.

Molly begs to differ.  See below.

Warnings Against LinkedIn Recommendations: Justified or Propaganda?

LinkedIn, a popular social networking site, enables users to “recommend” other users with whom they’ve worked or done business. Not a bad idea, really. In theory, a recommendation could improve the legitimacy or credibility of a user, even making the user more desirable to potential clients or employers—the basic premise of the professional-networking site.  So why, then, have commentators suddenly taken up the issue in protest? Even the ABA Journal warns against recommendations, suggesting that employers are best advised to avoid them altogether.

But what about the linguist supervisor who loves to play wordsmith any chance he gets and who pens a lovely recommendation filled with gloriously specific adjectives and adverbs?  Then it may be a little trickier, right? Well, that depends. Does the junior Shakespeare write the same wordy recommendations for everyone or did he reserve his poetry for this one individual?

Even if the employee who later sues is the only lucky recipient of this supervisor’s digital words of praise, the realities of modern-day life—including our online lives—are not simply ignored by the courts.  Just because the law has not caught up with the constantly changing dynamics of social media doesn’t mean that it has turned a blind eye to it, either.  The courts and juries recognize that the fact that you “friend” someone on Facebook or “recommend” someone on LinkedIn is a far cry to an actual off-line friendship or analogue reference letter.

I am of the opinion that this new story is nothing more than propaganda.  I don’t think there’s much to the theory at all. But, to be fair, let’s look at it more closely.

What’s the potential harm, according to those who caution against permitting managers to recommend an employee?

Well, they say that a positive recommendation could be detrimental to the employer in a later lawsuit brought by the recipient of the recommendation.  If the employer claimed to terminate an employee due to performance, a positive recommendation would seem to contradict that claim.  The contradiction could act as pretext evidence, tending to show that the employer’s proffered reason (poor performance), was a mere pretext for a discriminatory reason for the termination.

Sounds legitimate to me.  Indeed, if a supervisor tells an employee how wonderful he or she is all the while thinking terrible things about the quality of the employee’s work product or habits, then there is likely going to be a contradiction between the reason the supervisor tells the employee he or she is being fired and the real reason.  Or not.  Maybe the supervisor, who is too chicken to be upfront and honest with the employee requesting a recommendation to just come out and say, “You know, Bob, I’m going to have to pass.  I don’t think I could write a recommendation for you because you haven’t been a very good performer while you’ve worked for me.”

Instead, the supervisor chickens out and says, “Uh, sure, Bob.  I’d be glad to write a recommendation for you.  Right after I get back from lunch.”  He then proceeds to write a “recommendation” that is pretty bland, entirely generic, and, to most people, having nothing to do with the specific individual.  Good for the wimpy supervisor!  If it’s a “positive” recommendation that is purely vanilla standard issue, then no harm done.

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Two great blog postings from two great online legal sources.  The first by Jon Hyman of Korman, Jackson and Krantz talks about a restaurants liability of firing employees after reading their Myspace posts.  This does not fit with our argument about not using it for background screening prior to hiring but it is closely related.  If you read our story about Bozeman Montana you will see how this jury finding is important and timely.  The practice of requiring employees to divulge their passwords violated the Stored Communications Act.

The second story comes from the Legal Blog Watch.  In it, 69 year old human rights activist Khedija Arfaoui is facing an eight month jail sentence in Tunisia for posting a message on Facebook about rumors of children being kidnapped in the country for their organs.  Enjoy!

Jon Hyman Blog

Carolyn Elefant Blog

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Just found this great interview with attorney Jacqueline Klosek from Goodwin Procter about the dangers of using social networking sites such as Facebook and MySpace for employment screening purposes.  Among the topics discussed is troubling screening policy adopted and later rescinded by the city of Bozeman, MT.

Create Job Applicant Screening Policies Upfront- by Lora Bentley, IT Business Edge

Bentley: I’ve read about the public outcry that resulted from the City of Bozeman, Mont.’s decision to ask job applicants for their social networking site user names and passwords. Obviously, there are enough problems associated with that practice that the city discontinued it. Can you explain?

Klosek: It’s just, in my mind, fraught with legal dangers. For example, what you post on your own Web site, the writings and photos and such, you’re really using someone else’s service. And for the most part, if you provide your password to the sites in which you participate, you could be violating their terms of use, which could leave you as the user subject to potential claims, including termination of your account or worse.

Then, as an employer, say you ask someone for their user name and password and then give it to another employee to do the screening, you don’t know exactly what they’re going to do with that information. With the user name and password, they’re basically impersonating the person whose account it is. They can send e-mails that purport to be on that person’s behalf, they can review e-mails that were sent from other people… It could be mundane personal communications, but there could also be trade secrets being exchanged, or a host of other things behind these protected e-mails. It’s just a minefield of dangers, in my view.

Bentley: What if you are using the Internet to screen prospective employees without their user names and passwords? Aren’t there still risks in doing that?

Klosek: A great majority of potential employers do screen applicants using at least publicly available portions of the Internet. In some respects, there can be meaningful information on some of those sites, but you’re right to suggest there are risks in doing so. The biggest risk is that you may find too much information — information that, as a prospective employer, it may be dangerous for you to have.

For example, laws that we have in the States would prohibit inquiring or basing employment decisions on factors such as age, family status (whether or not you were looking to have children) …. Most employers are well-versed in avoiding those topics in the employment process, but they may access that information online.

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The Bozeman City Commission called a special meeting last night to decide whether the city should hire a third party investigator to look into the hiring practices of the city’s human resources, police and fire departments after the city drew worldwide criticism for requiring job applicants to provide passwords to social networking sites like MySpace and Facebook on their job applications.  Needless to say, the vote culminated in a unanimous yes.  Personally, I think a negative vote on this move would have resulted in more criticism for the city.

Since this story broke, we have been all over it like bees to honey.  And we will continue to follow it in anticipation of the outcome.  The use of social networking sites as a background screening tool is a very hot topic for hiring professionals and the result of this inquiry could ascertain its level of appropriateness, if any, in the decision making process.

Stay tuned…

Investigator to look into Bozeman “social media” policy

Montana’s News Station – June 30, 2009

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According to the ABA Journal, the city of Bozeman, Montana is asking job applicants to provide a list current personal or business websites, web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc.  While we’ve written extensively about our objections to using such sites for employment background checks, we understand that it happens.  What we have never seen happen is another requirement of the city which asks candidates to list their user names and log-ins.

We are all for extensive employment background checks and stringent employment screening practices, but this seems a little over-reaching.  Do you think the city has gone so far over the line that they can’t even see it anymore?  I wonder what our favorite legal bloggers from Ohio and Delaware think about this policy.

Town Requires Job Seekers to Reveal Social Media Passwords

A human resources requirement by the city of Bozeman, Mont., that job applicants provide a host of personal information, including passwords to social networking sites like Facebook and MySpace, is creating a sensation online.

E-mail is fair game too considering officials also ask for passwords to Google and Yahoo accounts.

Montana’s News Station, a CBS affiliated site, reports that they were tipped to the application process from an anonymous individual who was concerned about Bozeman’s background check policies.

According to the station, job seekers for Bozeman city posts are required to sign a background check waiver. In addition to allowing standard criminal records checks and past employment reviews, the applicant is required to do the following:

“Please list any and all, current personal or business websites, web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc.”

The city form then offers three lines for applicants to list websites, their user names and log-in information and their passwords, Montana News Station reports.

City Attorney Greg Sullivan is quoted as defending the policy: “We have positions ranging from fire and police, which require people of high integrity for those positions, all the way down to the lifeguards and the folks that work in city hall here. So we do those types of investigations to make sure the people that we hire have the highest moral character and are a good fit for the city.”

In a follow up piece on the Bozeman HR requirements, the Montana News Station reports that, as a result of the story, Bozeman officials are receiving an e-mail a minute about the policy.

At the time the follow up story was reported, more than 5,000 votes had been tallied in an online poll (IMAGE) about the issue. A whopping 98 percent say the policy is an invasion of privacy.

The city is reviewing the policy. And they may be speeding the effort now that Facebook has become aware of the city’s HR policy.

The information technology publication, The Register, quotes Facebook as saying the Bozeman policy “is a violation of Facebook’s Statement of Rights and Responsibilities, which received feedback from users and was ultimately approved in a site-wide vote.”

Facebook further indicated it would be in touch with Bozeman officials.

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An interesting twist on the social networking argument.  We have written and spoken extensively about the pitfalls of using social networking sites for background checks.  Well, this is how it is now affecting the legal world.  According to LegalBlogWatch, a Judge in a civil case accepted a “friend” request from one of the lawyers in the case.  This begs a lot of legal questions!

Facebook Friend Earns Judge a Reprimand

Opposing counsel are sitting with the judge in his chambers during a child-custody trial when the lawyer for the husband brings up Facebook. The other lawyer says she is a non-user, but the judge quickly agrees to “friend” the lawyer who is on Facebook. As the trial proceeds, the judge and the lawyer comment about it to each other through their Facebook pages, with the lawyer writing in one post, “I have a wise Judge.”

Hmmm. Wise in the ways of social networking, perhaps, but lacking something in the judicial-ethics department. When the hearing ended and the judge entered his order, the wife’s lawyer found out about their “friendship” and quickly moved for a new trial and for the judge’s disqualification. The judge promptly removed himself from the case and the wife got a new trial.

The socially networked North Carolina judge, B. Carlton Terry Jr., also earned himself a public reprimand from the state’s Judicial Standards Commission. The judge now agrees “that he will not repeat such conduct in the future” and “will promptly read and familiarize himself with the Code of Judicial Conduct.”

Part of the Facebook exchange between the judge and the lawyer involved the weight to be given testimony that one spouse had been unfaithful. During a meeting in chambers the day after the Judge Terry had friended lawyer Charles A. Schieck, Terry told the lawyers he believed the testimony but did not see that it made any difference in deciding custody. Schieck responded, “I will have to see if I can prove a negative.”

That evening, Schieck posted on his Facebook account, “How do I prove a negative?” Judge Terry saw it and responded that he had “two good parents to choose from,” to which Schieck posted his “wise judge” remark. The next day, the two shared additional messages on Facebook. In one, Schieck wrote, “I hope I’m in my last day of trial.” Judge Terry responded, “You are in your last day of trial.”
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Have you ever played hooky from school and then inadvertently ran into one of your teachers later that same day?  Talk about an uncomfortable situation.  Same goes for your job – if you call off sick with a migraine stating that staring at a computer screen all day at work will make it worse, don’t get caught using Facebook at home.  One woman did and found herself out of the job.

I have to say, I sympathize with this woman.  If she truly was using her phone to access Facebook, that is markedly different that a 17 inch flatscreen monitor.  But it’s still a difficult argument to make.

Woman Fired For Using Facebook While Off Sick

City News Toronto – April 27, 2009

Social networking sites like Facebook, MySpace and Twitter have changed the way many people communicate and have had an unexpected impact on the workplace. Some companies have instituted policies blocking the popular web destinations, because workers spend too much time chatting with friends and not enough on their jobs.

And many prospective employers now troll the sites to find out what possible hires are leaving out of their resumes and what their attitudes are really like, leading some to lose a shot at increasingly limited openings.

Which brings us to another cautionary tale about Facebook, and an employee who lost her job because of it – even though she wasn’t using it at work.

Last November, a woman in Zurich, Switzerland called her employer, an insurance company, and told them she was too ill to come into work that day. Part of her duties involved using a computer, but she claimed her cure involved lying in the dark and that she was unable to face the lighted screen.

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15 days and counting until the start of the 2009 NFL Draft.  And do you know what team franchise personnel are up to?  Checking Facebook and MySpace, of course!  You could say that the “unofficial” draft has started as some teams are already in the process of weeding out players they feel will not benefit their organization – off the field.

An invasion of privacy?  Not really.  We all know that once something is posted to the Internet, it’s really not private anymore.  A little underhanded?  In this case, I’d say yes.  NFL personnel are creating bogus profiles in order to gain access to potential prospects’ personal profiles.  A good idea?  (I think you know the answer to that one!)

What strikes me as funny is now that the NFL’s method of vetting draftees is out, potential picks are going to scrub their profiles clean and be very wary of who they befriend.  I give this method another two, three years tops before the NFL needs to find another “innovative” way to screen their prospects.

Social Networking a Potential Trap for Prospects

By Charles Robinson, Yahoo! Sports – April 7, 2009

The woman in the Facebook picture is attractive, with auburn hair and icy blue eyes. She is flanked by several other women, each armed with an inviting smile and curvy features. Along with the photo is a hopeful note from the female “fan” asking to be added to a player’s personal networking profile. 

The twist? These women don’t actually exist, at least not in the way that some unsuspecting NFL prospects are led to believe. Indeed, they are a figment of one NFL team’s imagination – a phony Facebook profile, used as a tool by one franchise in the pre-draft vetting process. A Trojan horse that, when used effectively, unlocks a door to a world of Internet pictures and information which most NFL teams are now consistently compiling to help polish their dossiers on draft picks.

“It works like magic,” said a personnel source that was familiar with his team’s tactic of using counterfeit profiles to link to Facebook and Myspace pages of potential draft picks. The source directed Yahoo! Sports to one of the team’s “ghost profiles” – a term he coined because “once the draft is over, they disappear. It’s like they were never there.”

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Will we be seeing you in Las Vegas at the SHRM Staffing Management Conference April 29-May 1, 2009?  employeescreenIQ will be exhibiting again this year and while our good looks might not draw you to the booth, we’re sure to have cool giveaways!  We might even have some helpful information and materials about background checks and employment screening.

We are also excited to announce that employeescreenIQ president and C.O.O., Jason B. Morris will be leading a educational session on the use of Social Networking Sites when conducting background checks on Wednesday April 29th at 7:00am.  (Don’t worry.  They’ll serve coffee.)

Please stop by and see us at booth #317 if you plan to be there.

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