Social Media and Background Checks

As Simon mentioned in welcoming me aboard, I have been writing an employment law blog for nearly 7 years now, which is hard for me to believe. At that time, there were only a few active legal blogs in Canada and over these past 7 years I have watched this space develop into a vibrant hub of information sharing, discussion and debate. So for my first Slaw post, I’ll start with a discussion of social networking sites in employment.

But first a digression. I suppose it was only a matter of time, but the ABA Journal reports that the “Florida Board of Bar Examiners voted to review applicants’ social networking sites on a case-by-case basis”. The Florida Bar News put it this way:

“Watch what you post on your Facebook or MySpace social networking Web sites, because the Florida Board of Bar Examiners is interested in taking a peek — and not as your ‘friend’.”

There appears to have been some thought given to requiring all bar applicants to provide access to their Facebook and/or MySpace websites but this was abandoned in favour of a more selective approach for certain bar applicants that met specified criteria and fell into certain categories such as “applicants with significant candor concerns, including lack of candor in employment applications or resumes”. If you want to read more about this have a read of the report submitted to the Supreme Court of Florida starting at page 4.

Hat tip to Molly DiBianca who writes one of my personal favourite U.S. employment law blogs, The Delaware Employment Law Blog.

What about Canada?

Good character status is a licensing requirement in Canadian jurisdictions (for example here in Ontario and Alberta, among others).

Will these types of checks become more common in Canada as a means of examining “good character” in the professional licensing process? If so, how and when will they be used?

In the employment context, it seems that more and more employers are conducting on-line searches as a component of their “background” check process during the hiring. A recent Career Builder survey of 2600 hiring managers concluded that 45% “use social networking sites to screen potential employees, compared to only 22 percent of employers last year.”

Of those who conduct online searches, “29 percent use Facebook, 26 percent use LinkedIn and 21 percent use MySpace. One-in-ten (11 percent) search blogs while 7 percent follow candidates on Twitter.”

In fact, one employer went so far as to require all applicants for employment to submit a list of 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.” along with passwords. This controversial policy was rescinded.

On-line activities can, indeed, have adverse employment consequences as many have discovered. The New York Times article For Some, Online Persona Undermines a Résumé is just one example of the long reach of the on-line footprint.

But conducting on-line searches as part of the hiring process is not without risk to the employer. George Lenard, a long-time U.S. employment blogger wrote a series of posts (from a U.S. perspective) on some of the issues that present themselves when conducting on-line searches as part of the hiring process (Employers Using Facebook for Background Checking, Part I, Employers Using Facebook for Background Checking, Part II and Employers Using Facebook for Background Checking, Part III).

The risk of on-line searches in the employment context arises, largely, because too much irrelevant information might be turned up and come into the hands of the employer. Once the employer has this information, whether as a “screening” tool or in making other employment decisions, any adverse decision so far as the employee or prospective employee is concerned could be challenged on the basis that this irrelevant information was used, even in part, as a basis for the decision. For example, hiring or other employment decisions might be open to challenge as being discriminatory and contrary to human rights legislation. So there is risk.

At the same time, it is possible for on-line searches to reveal information that may well be relevant to hiring decisions.

Consent, transparency and timing may be the better approach where on-line searches are being conducted as part of the hiring process. Also, if disconcerting information is revealed, it may be prudent to give the applicant an opportunity to provide his or her explanation. Google your own name and see how much information turns up that has nothing to do with you.

That said, what you post or write on-line is a permanent record for all to see with all the good and bad that comes with that.