E-screening Proves 'E-Resistible': But at What Cost?
Online communities, such as Facebook.com and MySpace.com are booming, with MySpace membership at 60 million and 5 million more joining every month. An innocent practice on the surface, there are legal pitfalls nonetheless associated with using online communities for candidate screening and personnel decisions.
By Brenda Kowske and Mike Southwell
Jiabei Chen, a senior majoring in finance at the University of Minnesota, raced home one afternoon to log on to her profile on Facebook.com, a popular college networking Web site. She had just heard a rumor that a law school to which she had applied was checking the site to learn more about their candidates.
"I knew I didn't have anything embarrassing on my profile," says Chen, "but was concerned about what my friends may have posted."
Knowing that her friends were not thinking of the site as work-related, she was worried they may have posted something inappropriate.
This is a scene that is unfolding more and more throughout the country, as college students are frequently caught off guard by employers and universities using the Internet to find out more about potential recruits than ever before.
While "Googling," or running an Internet search of somebody's name has become commonplace, many organizations are becoming more invasive in their Internet canvassing, searching a new and extremely popular breed of Web site.
These
"online communities,"
such as Facebook.com and MySpace.com, are used by people around the world. Their users create personal profiles describing themselves, their hobbies and interests. Viewed by other community members, these profiles allow users to chat and message, network and get to know one another.
Chen believes that membership in either Facebook or MySpace is ubiquitous among college students across the country. "Most of my friends are on the Facebook, and if they aren't on the Facebook then they're on MySpace," she says.
At first glance, these sites may seem like a great place to learn valuable information about potential employees; the users are much more honest and open about themselves online than in a traditional interview. Few organizations, however, are taking the time to analyze the pitfalls of this practice, namely the potential to violate equal opportunity and privacy laws.
Personal Information Made Public
Online communities are just that -- communities -- where users create an 'oral' history and talk about everything from sobering personal trauma to joking about the last party they attended. Pre-'e'volution, these conversations would happen behind closed doors and would leave no paper trail. However, as friends talk, companies and universities are listening, or perhaps more appropriately, eavesdropping.
The difference between the way a person portrays himself or herself within such an online community and during an interview can be as different as night and day.
Furthermore, stringent guidelines imposed by the Equal Employment Opportunity Commission severely limit the information an interviewer may solicit. During interviews, employers may not ask questions regarding race, religion, sexual preference or marital status, yet all of this information can easily be uncovered by looking at a candidate's online profile.
These profiles include names, hobbies, association memberships and everything in between. Users can choose not to disclose anything personal and/or use the site's privacy settings, but because the point is to socialize and network, they are likely to be more detailed in -- and maintain open access to -- their profiles.
For example, a search of several Facebook profiles at one university campus came across the following groups: Campus Crusade for Christ, Al-Madina and Hillel; Queer Men on Campus and GLBTA; Latinos Unidos and Young, Gifted and Black. A search in MySpace revealed users who proclaimed, 'I'm hot and like to party' and pictures of a night's drunken debauchery.
The Perils of Corporate Use
The possibility of employers using these online community sites to screen employees is lighting up university wire services -- with examples of employers, university officials and even the police searching the sites.
According to Facebook spokesperson Chris Hughes, "The likelihood of a potential employer having access to an undergraduate's profile is very low. Several factors would have to line up to make it possible."
On the other hand, Paul Timmins, career services director at the University of Minnesota's College of Liberal Arts, says he has heard several examples of companies using online communities to screen employees, or 'e-screening'.
He described how some organizations use their interns, who have either Facebook or MySpace accounts, to check profiles. "In a world where companies are trying to learn everything they can about employees, it's not surprising that companies are [e-screening]," he says.
We strongly caution organizations about this practice. There are two primary legal areas in which this practice may put a company at risk: equal opportunity and privacy law.
Equal Opportunity Law
Under laws requiring equal opportunity, organizations must include all protected classes in their recruiting, selection and performance-management efforts. Allegedly wronged employees can file two types of suits under equal opportunity law: direct and indirect discrimination.
Direct discrimination is the purposeful and premeditated action to not hire or promote, or to fire based on the employee's race, gender, ethnicity, disability status or sexual orientation.
Online-community profiles that disclose this information tempt discriminatory practices in HR. For example, as health-care costs grow out of control in the United States, such costs can be both prohibitively expensive and a strong motivator in hiring decisions.
One possible example could have a hiring manager discovering via a MySpace profile that someone interviewing for a job is a cancer survivor. Concerned about supporting the cost of a possible relapse, the hiring manager decides not to hire her.
Fiscally, the strategy makes perfect sense, but this practice is both unethical and illegal. Because the applicant must prove the profile was considered in the organization's hiring decision, the probability of an employer's loss in a lawsuit is low. However, if this were your organization, would you want to be responsible for the negative PR generated by being known as the employer who refused to hire cancer survivors?
On the other hand, indirect discrimination happens inadvertently, primarily through selecting employees from confined applicant pools. Even if an employer is not overtly discriminating by using information from MySpace or Facebook, he or she may be unintentionally filtering out a specific group of people.
For example, Facebook consists primarily of college educated twenty-somethings. If an HR representative or hiring manager selects only from this pool because she or he feels more comfortable with this added information on the applicant, she or he may be committing indirect age discrimination.
In the end, organizations must prove their selection procedures are valid and reliable in order to win a discrimination suit in court. Specifically, this means that they must prove that their selection procedures accurately measure an appropriate group of people on the correct job-related skills and abilities. It's a far leap to say that much of the online community information is directly and causally work-related. The information that can be verified through profile perusal, such as college graduation status, could be more directly investigated through a well-placed phone call or e-mail.
Privacy Law. By conducting online searches, employers may also be breaching privacy law as defined by the Fair Credit Reporting act. The act requires organizations to get explicit consent to conduct a background investigation of an employee or applicant. The organization is also required to provide the results of the investigation to the employee, so the employee is able to dispute or respond to uncovered infractions. Online searches involve no explicit consent, nor do they offer a candidate the opportunity to rebut the allegations.
In the end, HR may defend this practice by saying the existence of an explicit profile is the responsibility of the user-applicant. After all, the Internet is the public domain, and therefore a free-for-all. Users would have a difficult time proving the organization used their online information, although user logs can be provided through a subpoena.
Certainly online community users are responsible for the content on their profiles and sites. At the current time, it seems unlikely that an individual filing suit against an organization would win, and at the same time organizations are reaping valuable information about their hires and employees. But that's a big risk to take. Is it worth it?
Legalities aside, there are two more reasons to discourage e-screening.
The PR Nightmare
Lawsuits, even if won, propagate bad press. Let's say an online community member starts chatting about not getting a job at your company on a Facebook site. Sure enough, others chime in and validate the person's fears: They also were not hired due to the increased medical costs of a disability.
Here the story could take one of two turns: The person and his or her friends could subpoena the Web-site administrator for user information and, once they discover that a member of your HR organization did visit their site, they could file a class-action lawsuit.
On the other hand, the person could take a less formal approach: He or she could log onto a more general Web site, such as disabledworkerlaw.com, and relate what happened. In one fell swoop, your HR department could get the organization a reputation of discriminating against disabled workers and using underhanded means to get applicant information. It's a news story that the media would love.
Invalid Information
If your organization is ever brought to court for discriminatory hiring practices, it is your responsibility to provide proof that your practices have no adverse impact, meaning that, through your processes, applicants are not differentially selected-out based on their protected status or group membership.
In addition, the organization may be required to submit a 'validity study,' or a study proving that better results in the selection process predict superior work performance.
Would you be confident that information fed to you through an online community is not biased, or, for that matter, just plain wrong? If asked, would you feel equipped to provide research that this practice is appropriate for personnel decisions? Would you have kept records of your e-screening so that a validity study was even possible? The information on the Web is constantly changing, is full of jokes and lies and is impossible to validate. In short, online community information is completely unsuitable for selection and promotion processes.
All organizations want to hire the very best. Therefore, e-screening via Facebook or MySpace is a tempting option during the selection process, especially for line managers who lack the legal and organizational expertise of HR professionals.
Unfortunately, there are substantial legal and PR threats linked to e-screening. Even if the practice were absolutely aboveboard, the fact remains that e-screening does not give HR the information it needs to differentiate the best from the not-as-good or the downright poor applicants.
In fact, information posted on online communities is likely to add so much 'noise' to your recruitment efforts that the practice is more detrimental than doing nothing at all. The moral of the story: If you need more information, ignore the Internet. Rather, ask better questions during the interview, and follow up with references that have something legitimate to share. Sometimes technology is just not all it's cracked up to be.
Brenda Kowske, Ph.D is a research consultant for Personnel Decisions International, a global HR and management consulting firm. Through her research in selection, development and international employment issues, she has written for multiple publications. She earned her doctorate and master's degrees in Human Resource Development and her B.A. in psychology from the University of Minnesota.
Michael Southwell is a research project coordinator at PDI. He has a B.A. in International Relations from the University of Minnesota and studied Chinese business and economic policy at East China Normal University in Shanghai.
September 1, 2006 Copyright 2006© LRP Publications
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