We’ve all done it. You enter the name of the person who’s now dating your ex, the kid that’s taking your 17-year-old daughter to the movies, the neighbor that’s suddenly your elder parent’s new BFF, or the candidate that just applied for a job with your company. What is Google telling you? How many social media sites did you plug the name into? How many hours are you spending opening pages, reading posts and tweets, all while your heart is racing and you’re struggling to determine if this is the person you are trying to obtain information on or just someone with the same name.
When you see a picture or confirm an address and you realize it is the person you are trying to obtain information on, what do you do with the information? Well, we can’t lend you any advice on the personal side, but if it’s a prospective employee or even someone that you just interviewed, you must keep in mind that not all data is equal. While these searches seem harmless, the information retrieved could potentially create legal issues for your business. You may have uncovered information that, in a professional setting, you absolutely do NOT want to have knowledge of, especially relating to age, disabilities, gender, religion, or sexual orientation. Can you un-see what you’ve just seen? Chances may be slim that anyone would know if you saw such information if you did the search yourself, but it is possible and discoverable in the context of litigation.
HR professionals and most employers are aware of the EEOC (Equal Employment Opportunity Commission) and its view on using this type of information. The EEOC website states: When making personnel decisions—including hiring, retention, promotion, and reassignment— employers sometimes want to consider the backgrounds of candidates and employees. Except for certain restrictions related to medical and genetic information, it is not illegal for an employer to ask questions about an candidate’s or employee’s background or to require a background check. But the employer cannot conduct background checks or use the information obtained in a manner that denies equal employment opportunity to anyone on a protected basis, by intent or by unlawful disparate treatment based on race, origin, or other protected categories under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
The bottom line is any background information you receive, regardless of the source, must not be used to discriminate against an candidate or employee in violation of the EEOC Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions, Ban-the-Box laws and regulations, or any additional applicable laws and regulations. For more information regarding the EEOC, you can visit their website here. Please note that unlike the FCRA, the EEOC and various Ban-the-Box regulations do not make a distinction whether you did the background check yourself or hired a Consumer Reporting Agency (CRA) to do it for you.
So what about the data that is readily available online? Is it the same data you’d receive from an accredited CRA? In many cases, the answer is a simple NO. CRAs should be getting their data from trusted and thoroughly vetted sources and they should have procedures in place to ensure maximum possible accuracy (if you’re in the screening industry or involved with background checks for your organization, this should be a very familiar phrase). The companies that provide the data you find online or the data they pull to tease you to purchase subscriptions or join the site for “unlimited” checks with, are only concerned about stockpiling enormous amounts of data (and money) with little to no regard for the quality, accuracy, and completeness of the data.
Let’s return to the scenario we opened with. You are the hiring manager (or someone that has influence on hiring at your company) and you have an interview tomorrow. You decide to plug the candidate’s name into a variety of search engines and social media sites. Oh my! You found arrest records from 2005 relating to possession of a controlled substance. They are from the same city the candidate currently resides in and the name is the same. Now what? Say you decide to continue as planned with the interview. It goes well, and the candidate has the skills, expertise, and experience you are looking for. So you order a background check from your trusted 3rd party CRA…and the criminal section comes back clear. Why? You just Googled it and found the information yourself! How could the CRA possibly return a clear background check?
There are many legitimate reasons why this can and does occur. Perhaps it was only an arrest record and never went to court or there wasn’t enough evidence and the charges were dismissed. It could be that the candidate resides in a state that does not allow information to be reported if it’s older than 7 years. But the reason we see most often is that the data truly does not belong to your candidate. When the complete record is obtained at the source, the researcher is able to determine that the identifiers do not match your candidate.
Let’s be real, we’re all going to continue to use the Internet and unregulated search options that are so easily available to us, but hopefully this makes you think before coming to a conclusion that could adversely impact not only the candidate but also your company. As the workforce becomes more educated and aware of individual rights when it comes to background checks and personal information, employers will increasingly become litigation targets. We recommend that you consult with your legal counsel or someone that specializes in employment law that can help you create a thorough and compliant background screening program. Although, it may sound counter-intuitive, sometimes the less you know, the better off you (and your company) are. This is for the record.
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Traci Ivester - Chief Operating Officer
Traci Ivester directs the daily operations of ClearStar with oversight of the compliance and order fulfillment teams. Traci has significant experience with the product and service needs of major employers, and large and small consumer reporting agencies. She led the ClearStar team to achieve Professional Background Screening Association (PBSA, formerly NAPBS) Accreditation in 2013, and is also a founding member of PBSA. Before joining the ClearStar team, Traci was a founding partner and served as Vice President of global employment screening firm Vereda, Inc., a firm she took from start-up to a successful industry leader. Traci holds a BA in Justice Studies.
At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.
