With three million people losing jobs in 2008 and nearly 600,000 more workers joining the ranks of the unemployed in January of 2009, employers are now faced with a tidal wave of job applicants and an ocean of qualified candidates. While employers may enjoy the wide variety of choices available, now more than ever they must use background checks to ensure that they are choosing the most qualified person for the job.

To gain more information on individual applicants during background checks, employers have begun to search social networking sites: online communities of millions of people who share interests, activities, and information. A recent article on Marketwatch.com reveals that 40 percent of employers have searched Facebook and other social networking sites for information on potential hires during background checks, and that when they find negative information, more than 80 percent of the employers factor that information into their hiring decisions.

While no law officially prohibits employers from searching social networking sites while conducting their own background checks of current employees or job applicants, some legal experts have warned employers that if they turn to these sites to find out more about their current and potential employees they need to be aware of potential federal and state discrimination claims and invasion of privacy claims.

For example, if an employer finds information that could possibly harm an applicant’s chance at getting hired (such as a disability or medical condition) during a background check on a social networking site like Facebook – which has 175 million current users and grows at a rate of about five million new users a week – the employer could be hit with a discrimination lawsuit if the employer decides not to hire on that information.

Still, the jury is still out, so to speak, on whether a search on social networking sites may be subject to limits on background checks. If a third party service is used to conduct certain types of background checks, the Fair Credit Reporting Act (FCRA) requires that employers give prior notice of the background check to the individual being investigated. In addition, some states like California are enacting “FCRA plus” laws which require consent from the applicant even if employers do not use a third party to perform the background check.

According to some legal experts, employers can terminate an employee or refuse to hire a job applicant based on information found during a background check on a social networking site as long as that information is not used in a discriminatory manner or otherwise prohibited by law. However, some states prohibit denying a job to someone because of "off-duty" conduct that is not illegal, unless employers can show a direct link between the conduct and the responsibilities of the job itself.

Instead, legal experts suggest that employers use professional background check firms to perform background checks on ALL potential job candidates. These background check firms will also help employers to comply with federal and state background check laws and make recommendations as to the types of background checks employers should perform based upon the job’s requirements and duties.

Pre-employ.com – a nationwide leader in background checks and pre-employment screening services – is a top tier provider of innovative risk management solutions designed to help businesses worldwide do more for less. For more information about us, our services, and our solutions, visit www.pre-employ.com, email info@pre-employ.com, or call 1-800-300-1821. To follow Pre-employ.com on Twitter, visit www.twitter.com/PreEmploy.

tahearn@pre-employ.com

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