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Employers Using Facebook for Background Checking, Part I

Is it legal?

In preparing to post a Part III on this subject, I decided to revise and re-release this post, which originally appeared at collegerecruiter.com
There has recently been considerable attention in the media to instances of employers rejecting candidates or firing employees based on information obtained from social networking sites such as MySpace and Facebook.

For example, see New York Times: ¡°For Some, Online Persona Undermines a R¨¦sum¨¦,¡± telling this story:

When a small consulting company in Chicago was looking to hire a summer intern this month, the company¡¯s president went online to check on a promising candidate who had just graduated from the University of Illinois.

¡°A lot of it makes me think, what kind of judgment does this person have?¡± said the company¡¯s president, Brad Karsh. . .

Today I¡¯ll discuss a question posed by Steven Rothberg of collegerecruiter.com ¡ª prefacing my remarks with a lawyerly disclaimer that I am not providing legal advice and have not thoroughly researched these issues, but am merely making some general comments.

Steven asked that I comment on the lawfulness of making adverse employment decisions on this basis. He raised several concerns: that with Facebook, students often have an incorrect understanding that only other students can access their profiles; that there may be false information on those sites, perhaps not even posted by the individuals themselves; and that Facebook¡¯s terms of service explicitly prohibit users from using Facebook for commercial purposes.

General rule (employment at will)

Let¡¯s start with the proposition that, like it or not, generally employers are free to make unfair, stupid, arbitrary, and wrongheaded hiring and termination decisions, even based on false information, as long as in doing so they do not violate some specific law.

Discrimination Law

One category of specific laws that could be violated by an adverse employment decision based on information on a social networking site is federal and state discrimination law.

It could be evidence of unlawful discrimination if an employer checks for such Internet information on only certain types of applicants or employees, for example, African-Americans and Hispanics.

It may also be evidence of unlawful discrimination if although the employer searches for such information on all applicants or employees, discriminatory bias affects the employer¡¯s evaluation of the information obtained.

For example, an employer may view more negatively photos of an African American male, beer in hand, hanging out at a bar with a hip-hop DJ than photos of a white boy, also with beer in hand, hanging out at a rock ¡®n roll bar with a bunch of other white boys wearing frat T-shirts.

Tell me, was it really the public evidence of drinking that disqualified the individual? How many current employees would be disqualified from employment if never getting publicly intoxicated ¡ª or even drinking in public ¡ª was a job requirement? These are the kinds of questions the EEOC would ask if discrimination was raised.

Sexual orientation might be another touchy area. These days, it may be frankly disclosed on social networking sites without much thought. Yet, sexual-orientation bias remains and might cause some employers to make adverse decisions. In many states and municipalities, sexual orientation discrimination is unlawful, so such decisions will be prohibited.

Invasion of Privacy

Invasion of privacy is a claim that I doubt would fly. It requires a ¡°reasonable expectation of privacy.¡± A student may believe that access to their Facebook profile is limited to a few thousand of their schoolmates and their closest friends. The Facebook FAQs clearly support such a belief in limited access, stating:

Can I see the profiles of people on other networks?

Facebook was intentionally designed to limit the availability of your profile to only your friends and other people on your networks. This simple but important security measure promotes local networking and makes sure that your information is seen by people you want to share it with, and not by people you don¡¯t.

Nonetheless, it would be tough to claim that this expectation of limited access, even if reasonable, is an expectation of ¡°privacy.¡±

On the other hand, if you are using privacy features that you believe allow you to limit access to only invited individuals, as opposed to all others on your network, and an employer somehow hacks past such a privacy barrier, you may have a strong privacy claim.

Terms of Service Violation

Now, onward to the terms of service issue raised by Steve. For sake of brevity, I will only address Facebook. MySpace may present somewhat different issues. The Facebook terms include the following:

You understand that the Service and the Web site are available for your personal, non-commercial use only. You represent, warrant and agree that no materials of any kind submitted through your account will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material.

You further agree not to harvest or collect email addresses or other contact information of Members from the Service or the Web site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. Additionally, you agree not to use automated scripts to collect information from the Service or the Web site or for any other purpose.

You further agree that you may not use the Service or the Web site in any unlawful manner or in any other manner that could damage, disable, overburden or impair Web site. In addition, you agree not to use the Service or the Web site to:

impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity; . . .
intimidate or harass another;
use or attempt to use another¡¯s account, service or system without authorization from the Company, or create a false identity on the Service or the Web site.

Steven thinks it¡¯s a no-brainer that checking individuals out on Facebook for purposes of employment decisions is a commercial use. This certainly is a possible interpretation, but I believe not the only one.

The next sentence focuses on materials submitted through your account, not what you do with information you learn about others. Therefore, ¡°non-commercial use only¡± could be interpreted as prohibiting only posting information for commercial gain, such as advertisements, not surfing the site for information in support of a business purpose.

The paragraph goes on to specifically prohibit certain methods of obtaining and using information about others. Though it prohibits automated scraping and spamming, it does not address the issue of searching for specific individuals and using the information to make employment decisions.

It seems a stretch to say an employer is ¡°intimidating or harassing¡± the user of Facebook by using Facebook information to make an adverse employment decision, but this certainly could be argued.

A more serious issue would arise if the employer misrepresented their affiliation with a college in order to create an account allowing them to look up certain individuals, or used another¡¯s account to do so. This would appear to be a plain violation of the terms of service.

Consequences of Violation of Terms of Service

Now, let¡¯s assume the employer violated the terms of service. So what? My answer is that this fact may support a tortious interference with business expectancy claim, but probably only if it was a third-party recruiter or investigator who committed a violation. This is because interference by a third party is required. Perhaps such a claim against the individual who obtained the information improperly, not the company, would satisfy this requirement, but that is still somewhat iffy.

Other elements of this type of claim might also be difficult to prove, such as whether the candidate has a reasonable expectancy of employment.

There might also be a federal cause of action under the Federal Computer Fraud And Abuse Act to the extent the recruiter/employer exceeds authorized access (as authorized in the terms of service) in obtaining data from a computer system (the Facebook server).

Other Laws

Another law that could come into play is the Fair Credit Reporting Act. Despite its name, this law has broader application than credit inquiries. It might apply if the Facebook information was obtained by a third party investigator such as a recruiter or background-checking service. It would not prohibit use of the information, but would require disclosure of the fact that such information was the basis for the decision.

Thinking Practically

Those are a few of my well-educated, but still speculative, legal thoughts. Long ago, one of my mentors taught me to always ask not only what the law requires my client to do, but also what the client should do, taking into account extra-legal factors such as business realities, employee morale, employee and public perceptions, etc. Here, in the face of some murky and emerging law, I have some thoughts on what both employers and applicants/employees should do, given this growing trend of employers checking social networking sites.

I would advise applicants/employees to assume that future employers will read everything you post. So when you put something about yourself out there, you can be yourself, but avoid obvious negatives like saying you hate to work or posting sleazy or drunken photos. It may help to ask yourself whether you would want your mother to see your site. Sorry to say, but you may not even want to admit homosexuality or extreme political or religious views.

On a positive note, use your Internet postings, including blogs as well as social networking sites, affirmatively. They can help you build visibility and credibility as an expert in your field (or hobby). Join more ¡°serious¡± networking sites like LinkedIn even if you are still a student ¡ª and work at building a network there that can help you in future job searches.

I would advise employers to cut applicants and employees some slack. You were once young too and maybe did similar things ¡ª if not publicly on the Internet. Ask yourself how relevant the information creating the negative impression is to job performance.

If you are going to do Internet searches and use them as a basis for employment decisions, you better do so consistently, without regard to any legally protected classifications, e.g. race, sex, age. You should document them.

I also agree 100% with Steven¡¯s suggestion to use social networking sites and blogs in a positive fashion in your search to find good candidates. Consider the whole person, of whom the Internet persona is not always a fully accurate reflection.

15 Tips for Writing Winning Resumes

The thought of writing a resume intimidates almost anyone. It’s difficult to know where to start or what to include. It can seem like an insurmountable task. Here are 15 tips to help you not only tackle the task, but also write a winning resume.

Determine your job search objective prior to writing the resume. Once you have determined your objective, you can structure the content of your resume around that objective. Think of your objective as the bull’s-eye to focus your resume on hitting. If you write your resume without having a clear objective in mind, it will likely come across as unfocused to those that read it. Take the time before you start your resume to form a clear objective.

Think of your resume as a marketing tool. Think of yourself as a product, potential employers as your customers, and your resume as a brochure about you. Market yourself through your resume. What are your features and benefits? What makes you unique? Make sure to convey this information in your resume.

Use your resume to obtain an interview, not a job. You don’t need to go into detail about every accomplishment. Strive to be clear and concise. The purpose of your resume is to generate enough interest in you to have an employer contact you for an interview. Use the interview to provide a more detailed explanation of your accomplishments and to land a job offer.

Use bulleted sentences. In the body of your resume, use bullets with short sentences rather than lengthy paragraphs. Resumes are read quickly. This bulleted sentence format makes it easier for someone to quickly scan your resume and still absorb it.

Use action words. Action words cause your resume to pop. To add life to your resume, use bulleted sentences that begin with action words like prepared, developed, monitored, and presented.

Lead with your strengths. Since resumes are typically reviewed in 30 seconds, take the time to determine which bullets most strongly support your job search objective. Put those strong points first where they are more apt to be read.

Play Match Game. Review want ads for positions that interest you. Use the keywords listed in these ads to match them to bullets in your resume. If you have missed any key words, add them to your resume.

Use buzzwords. If there are terms that show your competence in a particular field, use them in your resume. For marketing people, use “competitive analysis.” For accounting types, use “reconciled accounts.”

Accent the positive. Leave off negatives and irrelevant points. If you feel your date of graduation will subject you to age discrimination, leave the date off your resume. If you do some duties in your current job that don’t support your job search objective, leave them off your resume. Focus on the duties that do support your objective. Leave off irrelevant personal information like your height and weight.

Show what you know. Rather than going into depth in one area, use your resume to highlight your breadth of knowledge. Use an interview to provide more detail.

Show who you know. If you have reported to someone important such as a vice president or department manager, say so in your resume. Having reported to someone important causes the reader to infer that you are important.

Construct your resume to read easily. Leave white space. Use a font size no smaller than 10 point. Limit the length of your resume to 1-2 pages. Remember, resumes are reviewed quickly. Help the reader to scan your resume efficiently and effectively.

Have someone else review your resume. Since you are so close to your situation, it can be difficult for you to hit all your high points and clearly convey all your accomplishments. Have someone review your job search objective, your resume, and listings of positions that interest you. Encourage them to ask questions. Their questions can help you to discover items you inadvertently left off your resume. Revise your resume to include these items. Their questions can also point to items on your resume that are confusing to the reader. Clarify your resume based on this input.

Submit your resume to potential employers. Have the courage to submit your resume. Think of it as a game where your odds of winning increase with every resume you submit. You really do increase your odds with every resume you submit. Use a three-tiered approach. Apply for some jobs that appear to be beneath you. Perhaps they will turn out to be more than they appeared to be once you interview for them. Or perhaps once you have your foot in the door you can learn of other opportunities. Apply for jobs that seem to be just at your level. You will get interviews for some of those jobs. See how each job stacks up. Try for some jobs that seem like a stretch. That’s how you grow… by taking risks. Don’t rule yourself out. Trust the process. Good luck in your job search!

What Employers Really Want…

If you’re a job search candidate looking to bestow gifts upon the recruiters of the world, here are seven packages they would love to unwrap this holiday season…

1. Resumes that really fit
If your resume isn’t a fit for the job, don’t send or submit it blindly! Recruiters are rewarded for fit so if your an unclear or unlikely fit, you better have an internal ally who can lobby for you.

2. Candidates that aren’t stalkers
Recruiters don’t mind a call every once in awhile for you to check in on your status or see if they are interested. But when you start to call multiple times a week (or even a day) you’ll get a shoulder colder than Minneapolis this time of year.

3. Perfect grammar and spelling
This time of year everyone in the office is looking for a laugh. So if your cover letter proclaims that “your the won for the job,” don’t be surprised if you never hear from us.

4. Commitment
Slowdowns at the office and sheer boredom may mean you start to send out resumes willy nilly. Please don’t. If you’re not serious about moving on, please don’t waste my time or yours!

5. No more vanity
As the job market starts to get stronger, candidates start to get more cocky. Please don’t focus on what’s in it for you. Instead, focus on telling me what you can do for my company.

6. Make our lives easier
Really understand what we are looking for. If you help us understand why you are the perfect candidate for the job, we can better convince other internal employees of the same thing. Make it easy for us to make your case!

7. Don’t be an online embarrassment
We’re starting to Google you and look at your MySpace and Facebook accounts. Don’t get us all excited that you’re a great candidate for us only to find out your MySpace page is full of activities that would make an employer blush!

And please, no more fruit baskets. We like coffee and chocolate.

Job Description

Effectively developed, job descriptions are communication tools that are significant in your organization’s success. Poorly written job descriptions, on the other hand, add to workplace confusion, hurt communication, and make people feel as if they don’t know what is expected from them.

Job descriptions are written statements that describe the duties, responsibilities, required qualifications, and reporting relationships of a particular job. Job descriptions are based on objective information obtained through job analysis, an understanding of the competencies and skills required to accomplish needed tasks, and the needs of the organization to produce work. Job descriptions clearly identify and spell out the responsibilities of a specific job. Job descriptions also include information about working conditions, tools, equipment used, knowledge and skills needed, and relationships with other positions. Still uncertain about the value of job descriptions? Consider these tips about employee job descriptions.

Job descriptions provide an opportunity to clearly communicate your company direction and where the employee fits inside of the big picture.

Whether you’re a small business or a large, multi-site organization, well-written job descriptions will help you align employee direction. Alignment of the people you employ with your goals, vision, and mission spells success for your organization. As a leader, you assure the interfunctioning of all the different positions and roles needed to get the job done for the customer.

Job descriptions set clear expectations for what you expect from people. According to Ferdinand Fournies in Why Don’t Employees Do What They’re Supposed to Do and What To Do About It,” (see sidebar) this is the first place to look if people aren’t doing what you want them to do. He says you need to make certain that they clearly understand your expectations. This understanding starts with the job description.

Job descriptions help you cover all your legal bases. As an example, for compliance with the Americans With Disabilities Act (ADA), you’ll want to make certain the description of the physical requirements of the job is accurate. Whether you’re recruiting new employees or posting jobs for internal applicants, job descriptions tell the candidate exactly what you want in your selected person.

Clear job descriptions can help you select your preferred candidates and address the issues and questions of those people who were not selected.

Well-written job descriptions help organization employees, who must work with the person hired, understand the boundaries of the person’s responsibilities.

People who have been involved in the hiring process are more likely to support the success of the new employee or promoted co-worker. Developing job descriptions is an easy way to involve people in your organization’s success.

How Do We Get Smarter About Our Recruiting Habits?

How do we get smarter about our recruiting? Our telecommunications company is going through an extended growth spurt. I¡¯d like to challenge management¡¯s thinking regarding whether certain jobs are necessary or merely “nice to have.” Our human resources systems and processes are very limited, we lack formal systems for job evaluation, and we have no job grading or a structured recruiting model. I¡¯m of the belief that a good route to pursue would be to start with verifiable data.

Starting with verifiable data is a great way to get smarter about recruiting, and with your organization¡¯s extended growth spurt, the timing could not be better.

When demand is on the rise, the traditional approach to recruiting is to react with fervor: filling vacancies as quickly as possible at the lowest cost, no questions asked. Companies barely take the time to develop recruiting strategies and plans, let alone try to create an overall plan for the workforce. When it gets busy, they don¡¯t have time for planning, and when it¡¯s not busy they don¡¯t see the need for it. Even when organizations figure out how to make the time, many just don¡¯t do a good job of workforce planning.

With limited HR systems and processes, it may be more challenging to pull together the data, but here is an approach you can take.

First, start with the headcount of your current workforce. You will want as much data as possible on this so you can analyze by different variables such as department, job classification, exempt vs. nonexempt employees or geographical locations. Then, take a toll of your active requisitions and map them to these variables. If you have informal systems or processes and your requisitions arrive on the back of a napkin, instead of through an applicant tracking system, you may need to estimate. The last pieces of data you will need are your historical attrition rates, sorted by the same variables, as well as your average time to fill (again, you may need to estimate).

Based on your average time to fill and your attrition rates, you can now produce a forecast of what the workforce will look like three months to six months out. You can show projected net gains or losses from a departmental view, job classification, geography or any view that is important to the organization. To take this a step further, you could convert any net gains into estimated cost increases and compare this to existing budgets, or analyze any projected losses to determine the impact on operations.

In human resources we have been longing to prove ourselves as business partners. If you arm yourself with this type of data, not only will you be able to challenge management¡¯s thinking on the growth of the workforce, but they will probably also listen to you.

SOURCE: Ed Newman, the Newman Group, Phoenixville, Pennsylvania, December 23, 2005.