Your Online Behavior has Consequences – Social Media Used to Screen Job Applicants

We’ve been cautioning people for a long time that what they post online can have serious implications for their careers.

Last month, the U.S. Federal Trade Commission’s Division of Privacy and Identity Protection stated that Social Intelligence, a consumer reporting agency and background screening service company that provides human resources, legal, compliance, and risk management organizations with information to assist in hiring decisions, may continue its work as long as it informs its clients of their legal obligations under the Fair Credit Reporting Act (FCRA).

Practically speaking, this means that the information that current employees and job applicants place on publicly-available social sites and elsewhere – or that others publish about them – is fair game, as long as the individual is later informed of any adverse action (for example not being hired) taken on the basis of the reports that Social Intelligence generates which contain employer-defined objectionable material.

According to a Social Intelligence spokesperson, “as per our policies and obligations under the Fair Credit Reporting Act, the only information we collect on job applicants is employer defined criteria that is legally allowable in the hiring process. Examples of this include racist remarks, sexually explicit photos or videos, or illegal activity such as drug use.”

Social Intelligence COO Geoffrey Andrews stated that:

In a given pool of candidates they screen, there are usually 20% who don’t pop up in an Internet/social media screen (“despite what some media have claimed, we don’t see a no-hit candidate as a negative thing”), 60% have a neutral or positive Internet footprint (“we’ll flag positive things in addition to the negative, such as awards received or an active presence on an industry blog”), and 5-20% of applicants have something negative out there about them. In an executive screen of older candidates, it’s closer to 5%, but in an applicant pool for a lower level of job with younger applicants who are more likely to have an Internet presence, it hits that higher 20%.

So what kinds of things does Social Intelligence search online for? As reported in Forbes, it’s instances of “employees’ disclosure of confidential or proprietary information, professional misconduct, or illegal activity” and “that monitoring does sometimes extend to looking to make sure an employee isn’t criticizing the company somewhere or getting into Internet fights with colleagues.” And by the way, negative information is stored for 7 years.

Prospective employees can, of course, not give their consent to a company to conduct a social media background screen check, but that in itself could result in them being passed over in favor of someone who greenlights the screening.



Daniel Solove and The Future of Reputation

Last year I meet with law professor Daniel Solove in Washington D.C. to talk about cybercivility and the law. Solove, who teaches at George Washington University Law School, is the author of the book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale 2007), which won the 2007 McGannon Award.

What compelled Solove to write The Future of Reputation? According to the preface:

“The idea for this book came to me soon after I began blogging in May 2005. I found blogging to be enthralling and invigorating. I was fascinated by the thrill of expressing my thoughts to a broad audience yet acutely aware of how people could be hurt by gossip and rumors spreading over the Internet…. When it comes to gossip and rumor on the Internet, however, the culprit is ourselves. We’re invading each other’s privacy, and we’re also even invading our own privacy by exposures of information we later come to regret. Individual rights are implicated on both sides of the equation. Protecting privacy can come into tension with safeguarding free speech, and I cherish both values.”

Solove argues that the current legal system doesn’t adequately address the challenges people face in an online environment, and proposes suggestions for change. It should be noted that he isn’t the only legal scholar to examine this issue – more recently others, notably Danielle Keats Citron, as well as Ann Bartow, Mary Ann Franks and Nancy S. Kim, have written about this as well. Yet outside traditional legal circles, Solove’s book is arguably perhaps the best known work on this topic.

In examining the role the law might take in addressing issues of reputation and privacy, Solove takes issue with both the purely libertarian and authoritarian approaches, proposing instead (see chapter 5) a “middle ground approach” that “would be to help shape the norms that govern the circulation of information. As people are discovering the profound power to disseminate information across the planet, they often continue with gossip as if there were no difference between real-space and cyberspace. The law should ensure that people better understand the dramatic difference between gossip offline and online.”

He regards the law as a critical component in stemming online hostility, noting that:

The law should expand its protection against irresponsible Internet postings, but only after disputes have been proven insoluble via informal means or alternative dispute resolution. In other words, the law should cast a wider net, yet have a less painful bite.

The primary goal of the law should be imparting a sense of responsibility on those who post online, deterring the spread of gossip and rumors in cyberspace, and creating incentives for parties to resolve their disputes informally.

This seminal book, comprised of chapters such as How the Free Flow of Information Liberates and Constrains Us, Gossip and the Virtues of Knowing Less, Shaming and the Digital Scarlet Letter, The Role of Law, Free Speech, Anonymity, and Accountability, and Privacy in an Overexposed World, is an important resource for anyone interested in participating in a discussion of cybercivility and the law’s role in resolving online conflicts.