Employment Background Checks: How Far Is Too Far?
NEAL CONAN, HOST:
This is TALK OF THE NATION. I'm Neal Conan in Washington. For years, employers have used credit checks and criminal histories to vet potential hires. With the growth of social media, hiring managers now turn to websites like Facebook, and some employers go so far as to ask applicants to turn over their passwords.
Facebook warns against this procedure. Two United States senators asked the Department of Justice to investigate whether these employers are violating federal law.
Employers, when you're hiring, what kind of information do you look for? If you're a job-seeker, how far should this go? Call and tell us your story, 800-989-8255. Email us, email@example.com. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.
Later in the program, the demon king of history, a new biography of Adolf Hitler. But first, background checks. And we begin with Caleb Garling, staff writer for Wired magazine who joins us from member station KQED in San Francisco. Nice to have you with us on TALK OF THE NATION.
CALEB GARLING: Thanks for having me, Neal.
CONAN: And why are employers asking for Facebook passwords?
GARLING: You know, in some cases, it seems like this is part of the hiring process that they have, the standard HR process. So reports have trickled out where employers are saying they just want to be sure that the person that they're going to hire is, you know, representing their organization to the best - you know, in the way that they would want, and, you know, doing a high-level check on that.
CONAN: So in the case - we played a cut of tape of a former Maryland corrections officer who applied to get his job back, and they asked him for his Facebook password. The explanation was they were looking to see if there were, in any of his pictures or messages on his Facebook site, evidence of gang-related, you know, that he was connected with any gangs.
GARLING: Yeah, that was one particular case, and there have been others, as well, where - and they typically seem - the reports that we've gotten so far is they are from, you know, government-related jobs. But even as far back as 2009, the city of Bozeman was doing similar things in asking employees to, you know, reveal their logins, and they would check for such things.
CONAN: And the question is, is this legitimate? The Justice Department has been asked to look into it, but I don't think either you or I know the law very well here.
GARLING: Yeah, that's absolutely true. This is a real gray area. We - you know, it's tangentially related to sort of our digital-age questions here of, you know, what's allowed? What is your information? What is public information? Even if this information exists on Facebook, you know, more or less a third party to your own hiring, you know, that's a question to be asked.
But I think, you know, Wired ran this story on Friday after Erin Egan, their chief privacy officer, sort of categorically said that, you know, Facebook does not support this in any way, and it's pretty clear that there is nobody in the public that would ever support something like this being legal.
CONAN: When you applied for your job at Wired magazine, did they ask for your Facebook password?
GARLING: They did not. You know, everybody, you know, in today's media you have to be on Twitter, but no, there was no discussion of Facebook, and definitely no discussion of, you know, passwords or logins.
CONAN: Yet, you could understand if you're in the public eye, you might want to check somebody's Facebook page to, you know, see if there are strange pictures. Let's put it that way.
GARLING: Yeah, you know, the motivation is not unreasonable. It makes sense. I think it's - again, it's just, you know, today's digital environment, the connectivity that we've been afforded today just creates a question of where is that boundary? That boundary was pretty clean just 10 years ago, even five years ago, and now it's not. It's pretty blurry. I have - you know, I'm friends with people I work with on Facebook. And, you know, I can see if, you know, what they were up to this weekend. So those lines are just blurry at this point.
CONAN: And yes, you can understand in (unintelligible), particularly in law enforcement, for example, to find out if, you know, all your Facebook friends are named Vinnie the Chin or something like that.
(SOUNDBITE OF LAUGHTER)
CONAN: But at the same time, it's a little like asking you for the key to your diary.
GARLING: Yeah, you know, and there obviously are already HR questions that off-limits, you know, about sexuality and I believe marriage status. So in asking someone for their Facebook login, in a sense, you're asking that question. I mean, you know, ostensibly those things could be on Facebook, or they could be reflected in your pictures or your status updates.
So you are - you know, again, I'm not trying to interpret the law here, that's up to the Department of Justice or a court, but you are in a sense, you know, asking some of those questions in sort of, you know, a quote-unquote, "a backdoor" sort of way.
CONAN: What does it say about Facebook and our lives these days that: A, employers would expect to find real clues as to your real personality, your real secret life on Facebook; and B, that they probably would?
GARLING: Yeah, I mean, you know, again, to, you know, to sort of - the big picture here is that people make voluntary choices to put things on Facebook. You know, I have yet to hear of a case of somebody being forced, you know, to upload pictures of the party that they were at this weekend.
So, you know, this is a burden that you take on when you have that voluntary relationship with Facebook, and this is a piece of the game. Now, if the government comes down and says you can't, you know, ask for that information, then, you know, obviously we've partitioned that a little bit better. You know, when you make the choice to log into Facebook, you're making the choice to be part of an ecosystem that's pretty public.
CONAN: And we've all been advised, though we often forget it, but we've all been advised that if you put anything online, you should expect that it should become, it will become public.
GARLING: Absolutely. It's - you know, information flows faster and faster every day. I mean, even if you just confine, you know, a picture or a status message to just your friends, you know, they can screen-shot that and then post it on their blog, and there you go, there's your name and your picture, and even though you were nicely protected behind the Facebook privacy settings, there you are on the Internet, and there it goes, and it becomes, you know, some crazy viral clip or something like that.
CONAN: Employers, how much information are you looking for? What kind of information are you looking for? And if you're a job seeker, call and tell us where's the line, 800-989-8255. Email firstname.lastname@example.org. We'll start with Sam, Sam with us from Buffalo.
SAM: Hi, how are you today?
CONAN: Good, thanks.
SAM: I worked at this former company. I no longer there for part of it being this reason, but they snuck an HR rep onto Facebook and made it so that way the profile showed no authoritive(ph) figure there. They ended up getting a couple people to add her, and then when you see, oh, it's a friend of a friend, people would jump on because they think, oh, it's someone we work with.
Well, this person was watching all of our accounts, caught one person enjoying some unlawful substances on the weekend and then comments about joining - having to go to this (unintelligible) after this weekend that hates her job. She turned around and fired her for it, and when we found out who it was, we all quickly de-friended her, and they lost about 30 employees at once. And...
CONAN: But this was...
SAM: (Unintelligible) a couple people are trying to sue them for it now.
CONAN: An undercover Facebook agent, in other words, got...
SAM: Essentially an HR agent. People from HR wanted to keep an eye because they claimed that they were allowed to so they can make sure that no one was representing their business wrongfully, and that's what their excuse was.
CONAN: And is this a company that is very prominent in the public eye?
SAM: It's, well, it's a former debt collection agency that nobody can stand anymore, but they ended up closing themselves down for other stupid activities that got them sued and, you know, arrested. So...
CONAN: Sam, that's an interesting story. Thanks very much, appreciate it, debt collection. You can understand they might have some reputation problems.
CONAN: In the meantime, Caleb Garling, this is not going away unless it's resolved by the courts. This is going to become - it could become a standard procedure.
GARLING: It could be. I mean, you know, I'm a little unclear how the HR rep was, you know, spying on people if they had had their own privacy settings, you know, pulled back appropriately, unless they had accepted a friend request from them, but...
CONAN: That's what the caller said, they accepted a friend request...
GARLING: Oh, they accepted a friend, OK.
CONAN: ...and then they saw, oh, well, Mary, a friend of Mary's, so I'll friend her, too, whoever it was.
GARLING: Right. Yeah, I mean, exactly. We're getting more and more online every day. We can't say this enough. So this information is just going to become more and more fluid. So, you know, if you're doing something that you think your employer would not like, you know, you should keep it offline.
And actually, the caller made me think, or remind me of one other thing is just, you know, Facebook's role in this because, you know, they're sort of a middleman. But at the same time, you know, Facebook, in Erin Egan's post, you know, they talked just very vaguely, at a very high level.
And when I talked with Facebook, they wouldn't clarify much beyond, but is, you know, the idea of ever Facebook getting involved in a legal sense. And I think at this point, they're - you know, speculating. They would have to stand back a little bit because they don't, you know, necessarily own a relationship with that employer, just really with the member.
CONAN: Caleb Garling, thanks very much for your time today.
GARLING: You're welcome, thank you.
CONAN: Caleb Garling, a staff reporter for Wired magazine, with us from our member station in San Francisco, KQED. Steven Kane is a human resources expert, the owner of Kane Partners, an HR consulting firm. He's with us from our bureau in New York City. Nice to have you with us today.
STEVEN KANE: Thank you, Neal.
CONAN: And it's interesting, how do social sites like Facebook, are this more and more common for employers to say, we'd like to take a look at your account?
KANE: Actually, I think that employers may be looking at accounts. There's all kinds of information to suggest that certain employers are. But with regard to what I would characterize as an invasion of privacy, I don't see any of that going on, to be honest.
KANE: Certainly with sophisticated employers, they understand that any information that they get from any source that would allow - would open them up to some kind of legal action if they take adverse action against the employee as a result of, you know, biographical information of, you know, race, age, sex, national origin, age, et cetera, just is - they're sitting ducks for that.
So the sophisticated employers don't want to know any of that information.
CONAN: What kind of - what kind of resources do sophisticated employers use to background-check their potential employees?
KANE: Well, they do two different things, and some folks do the reference checks internally, and some folks do reference checks externally. There are a number of firms who do this as a business, and when that happens, there is a very strict requirement that the applicant for a role give their permission to the external agent that they understand that they're going to be subject to all kinds of questioning, et cetera.
CONAN: So they might outsource it to an agency, but do they know what resources those agencies look at it? Are they credit agencies, for instance?
KANE: Oh sure, well, yes, they literally specify what they want the agency to do, whether they want to look at criminal records, military records, employment histories, ID records, education, those kinds of things.
CONAN: Stuff that's in the public record, in other words.
CONAN: All right, stay with us if you would, and we'd like to hear from more of you. If you're an employer, what kind of information are you looking for? If you're a job seeker, where's the line? 800-989-8255. Email us, email@example.com. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.
(SOUNDBITE OF MUSIC)
CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. We're talking about the background checks many employers run on potential hires. Asking for Facebook passwords is just one small aspect of this. A number of companies specialize in credit and criminal histories. Others scour the Web for blog posts, comments, tweets, Facebook posts.
Employers, when you're hiring, what kind of information do you look for? If you're a job seeker, how far should this background check go? Give us your story, 800-989-8255. Email firstname.lastname@example.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.
Our guest is Steven Kane, a human resources expert who runs Kane Partners, a human resources consulting firm. And when you were talking, Steven Kane, about people looking for stuff in the public record - criminal records, military records, that sort of thing - would it include as a matter of routine that some companies might well go look for whatever postings you may have put on the Web?
KANE: I don't know of any company who does this. Now, there may be some because it's certainly possible that they have high-security positions in their particular firm, whether it's any kind of employer, or there may be a position in an industry that requires a significant amount of public trust. So that would be a tool.
But unless an employer can show that somehow such information gleaned is really job-related to the role that they're seeking this person to play, they are really playing with fire by trying to get the information.
CONAN: It is, we all know, an employer's market at this point, and employers can always find a reason for turning somebody down, whether it's because they really found out something they weren't supposed to know or whether, in fact, there were 87 applicants for one job.
KANE: Yes, that's true, but at the end of the day, the employer needs to be able to justify its overall hiring practices, and if it gets a reputation for doing things that either applicants or its employees find distasteful, it will suffer in the marketplace. And that's a significant reason employers don't do things like this, is they have reputations they want to uphold.
CONAN: Maybe like that debt collection agency our caller talked about that's now out of business. Let's go to Megan(ph), Megan's on the line with us from Turlock in California. Megan, are you there? And apparently she's left us.
MEGAN: Oh, are you there?
CONAN: Oh yes, Megan, go ahead.
MEGAN: Sorry, I had you on mute.
CONAN: A lot of people would like to do that, yes.
(SOUNDBITE OF LAUGHTER)
MEGAN: I have a day care center here in Turlock, and I have now found that I need to friend-request my employees because several months back, we had a water day, and one of my employees took a picture of a child in a bathing suit in the yard, posted it to her Facebook page, you know, having so much fun at work, blah, blah, blah, tagged my place of business.
The parent found the picture of her child in a bathing suit on the Internet and was less than charmed by it. So now I've found myself in a position where when I hire someone, I friend-request them not so much because I want to see what they're doing but to make sure that the interests of my clients, that their children are not appearing online.
CONAN: Even innocent pictures like that, the parent is afraid that this is going to be seized upon by pedophiles and circulated.
MEGAN: Exactly. So now I have my employees having access to my Facebook page, even though I would kind of prefer them not to, but in our contract it says, you know, you can't post pictures of children at the center on Facebook, and kind of to enforce that, I have to know that they're not. (unintelligible) doing it, and if I'm not their friend, I wouldn't know.
CONAN: But turnabout being fair play, you give them access to your account, too.
MEGAN: Exactly, exactly, which I'm less than thrilled about.
(SOUNDBITE OF LAUGHTER)
CONAN: I see. So, do you as a result use Facebook differently than you might have before?
MEGAN: Definitely, definitely because I have people who are my employees that I want to maintain a professional relationship with. I don't really want them to see pictures of me going camping with my family on the weekends or whatever we're doing.
And also, I do have personal relationships with several of the daycare parents, and so if we do things with them on the weekend, you know, I don't want the line for my employees to be blurred, like oh, well, that's Megan's friend, so...
CONAN: I'll treat this kid differently.
MEGAN: Uh-huh. Yes.
CONAN: Oh boy, it all gets pretty complicated.
MEGAN: Sticky wicket.
(SOUNDBITE OF LAUGHTER)
CONAN: Welcome to the 21st century, Megan.
MEGAN: Right, it's awful, absolutely awful.
CONAN: Thanks very much for the phone call, appreciate it.
MEGAN: No problem, enjoy the show.
CONAN: Thank you. Steven Kane, you can understand her problem.
KANE: Yes. Clearly, you could argue that those positions at a daycare center are ones of public trust, and it's excellent that she has in her contract clear rules around what's OK and what's not OK.
I suspect that the employees there understand that she is doing this, and she has some form of approval for that, and I think that were there is an approval, there is a very different situation than if an employer is in secret trying to gain information about an applicant or a current employee.
CONAN: And it's - the turnabout being fair play, giving the employees access to her account I guess is sacrificing some of her own privacy, but on the other hand, it's establishing a bond of trust with the employees, too.
KANE: Again, yeah, I think that if the business necessity suggests that this is really a job requirement that the employees ensure that nothing in their conduct would result in their parents, customers, et cetera, being unhappy, I think that it makes sense.
CONAN: Let's go next to Amy(ph), Amy with us from Calera - is that in Alabama?
AMY: Calera, Alabama, yes.
CONAN: Go ahead, please.
AMY: Hi. Well, I'm actually a graduate education major, and I teach at a preschool. So I'm very careful about what I post on Facebook already. You know, I have a reputation to uphold with parents and with other educators. But I think this idea of a password to look at private messages is ridiculous.
We wouldn't stand by it if an employer demanded that they could rifle through your U.S. Postal Service deliveries or get your email password.
CONAN: I can understand that. It's also a question of - well, I don't know whether your job is, you're a member of a union or not.
AMY: I'm not a member of a union yet...
CONAN: Ah, but could this...
AMY: ...but I do play to, you know, sign up as soon as I have a teaching position at the secondary level.
CONAN: OK, but in that case, might this be something for the union to make clear in its contract with the employer that, no, you can't have this?
AMY: I think that that would be very good because, you know, the unions are there to fight for the rights of employees that are being abused, and right now, we do have a hiring market where you can just fire somebody if they're not holding up to your expectations and expect to find someone to fill it pretty quickly.
And so these job seekers are really at the mercy of their employer, and, you know, they're taking a lot of liberties right now. I'm - like I said, I'm very careful about my posts, but I also have to have a public Facebook profile because I'm also an independent author. And so I'm not going to be posting pictures of me drinking at roller-derby after-parties, but I am, you know, I might have a private-message conversation with a friend who's having marital troubles or a friend who has some kind of issue that they don't want broadcast to the world, and I think that's my right to keep that private.
CONAN: Well, Amy, we'll miss you at the next roller-derby after-party.
(SOUNDBITE OF LAUGHTER)
CONAN: Thanks very much for the phone call.
AMY: Thank you.
CONAN: Here's an email we have from Molly: As an employer, I recently hired an office assistant and runner for our small law firm. Before granting an interview to any of the qualified applicants, I Googled every one of them. To my surprise, I caught several applicants in lies regarding their driving record and work history.
One applicant had posted on his Twitter account that he'd run a stop sign and received a ticket with a you-know-me comment after he'd claimed a clean driving record on his cover letter. Applicants must know that anything and everything they post online may come up to haunt them.
Although I agree that asking for a Facebook password is a clear violation of privacy, as an employer I reviewed what I could of applicants with Facebook and Twitter accounts. It definitely helped narrow the field. Googling, you'd certainly expect that applicants would expect to be Googled, wouldn't you, Steven Kane?
KANE: Yeah, I think that this is a case of an individual who, whether it's because of their lack of understanding of what the workplace would be like or not, if they have a veracity issue, then the employer needs to know that before they hire them.
CONAN: There are also any number of cases, and we've all heard about the high-profile ones, from football coaches at Notre Dame to various other places, people who fudge their qualifications on their resume. Those seem to go sometimes undetected for quite a while.
KANE: Yes, that's true. Interestingly, there's an interesting legal issue about whether an individual's execution of an employment application constitutes the forever and ever ability of an employer to go back 15 years and say, oh, you lied on your employment application, that's grounds for termination.
CONAN: Uh-huh. Let's see if we can go next to - this is Matt, Matt with us from San Antonio.
MATT: Hey, what's up, (unintelligible). Yeah, I was calling just because I think that a lot of privacy is getting invaded just even in public information. Like, I have a DWI, and I find that that prevents me from getting jobs, and I'm just like is this going to be with me for the rest of my life, even though it doesn't really reflect who I am right now.
CONAN: Don't most DWIs, they're taken off the record after a certain number of years?
MATT: Not in Texas.
CONAN: Not in Texas. So that's going to be around to haunt you for a very long time.
MATT: It looks like it.
CONAN: Oh, I'm - well, the offense is pretty serious, on the other hand. Yeah. And, Steven Kane, that will pop up. Anybody doing an investigation, even the most rudimentary, would find that.
KANE: Yes, but it's not clear that it could actually be used in the hiring decision. That's the interesting question. I don't - I'm not familiar with Texas. I do know that there are expungement rules with regard to many, many, many offenses in various states, and this is really a state issue.
But just because there's something on a background check that's legal to show, it doesn't mean an employer could legally use that as a basis for a hiring decision. For example, if Matt were looking for a job as a - I don't know - a telecommunications operator, I'm not sure that a DWI or DUI would have any impact on that.
CONAN: Matt, have you found that you've been - had difficulty getting a job because of it?
MATT: Yes. I know with, like, state jobs, I don't believe they can view background - criminal background checks unless it's for, like, law enforcement positions. But I looked at foreign - to be a Foreign Service officer, and definitely can't do that because of the security clearance, trying to be understandable there.
CONAN: OK. Well, thanks very much for the call, and good luck.
MATT: Yeah. Appreciate it.
CONAN: Here's an email from Neal(ph): I work for a major airline based in Atlanta. And for the past two years, we've been dealing with fake profiles appearing in our work chat groups for various bases and cities around the world, and they've been posting lots of company propaganda and even have special duty flight attendants that are on special duty, paid to monitor the conversations and report people to management.
So maybe it's not so unusual for at least some companies to put, well, red herrings on their corporate Facebook accounts.
KANE: I think that this is a excellent topic for collective bargaining, where a representative of employees can deal with management to say, this should be acceptable. This should not be acceptable. And that's the best way to get agreement on what's legitimate and what isn't legitimate in this particular work setting.
CONAN: Steven Kane, human resource expert, owner of Kane Partners, a human resources consulting form - firm, with us from our bureau in New York. You're listening to TALK OF THE NATION, coming to you from NPR News.
And let's go next to Melissa(ph), Melissa with us from Owatonna in Minnesota.
MELISSA: Yes. I'm here.
CONAN: Go ahead. You're on the air.
MELISSA: OK. I've, you know, been looking for a more professional job, and I have a child with special needs. Now, I do have a Facebook profile, and I understand that that is my choice to do that, but it's to keep in touch with family and friends that I graduated with, you know, a family who lives out of state. And because my daughter has special needs, we're involved in Special Olympics. And I post the pictures, you know, and updates about that, about her. And any potential employer, if they were to see that, could think, well, jeez, is she going to miss a lot of work because she's got a child with special needs?
CONAN: Steven Kane, that would seem to fall right into the category of things an employer should not be able to use.
KANE: Absolutely. There's no...
MELISSA: Exactly. But, you know, if they go - if they ask during the interview process to see my Facebook profile, you know, what do I do? I'm more than willing to disclose that after I've gotten the job, but not until then because they can't ask whether or not I even have a family, especially when they see that I'm not married.
KANE: They can't - the employer can't use - do anything legitimately by using Facebook or other social media that it can't do legitimately using other means. So, you know...
MELISSA: I understand that. But how can you prove - if they choose not to offer you the job, how can you prove that that was the reason why? That's the issue that I have. I mean, I think you're just opening a big, old can of worms when - I mean, there's nothing on there that I am ashamed to show my family because they are on my friends list. However, that doesn't mean that a potential employer should be able to see that.
KANE: I understand. That's a very tough one. Clearly, this is - you know, the change in technology and the economy and the lack of clarity around these things suggest that there is a need for some legislation, I think, to clarify...
KANE: ...what kinds of background check subjects are legitimate, what kinds aren't, who can perform them, et cetera. And this is a perfect example of one.
CONAN: Melissa, thanks very much for the call. Good luck.
MELISSA: Thank you.
CONAN: Sorry. You were going to add something?
MELISSA: Well, I do have a part-time job. And because of my job now, I am very cautious about what I post on there just because it's a very public job. So, I mean, I'm very cautious anyway. But still, you know, for somebody to be able to see that, that just does - it just kind of rubs me the wrong way that...
CONAN: I understand.
MELISSA: ...my children would prevent me from keeping - from getting a job.
KANE: Melissa, my only suggestion is that you seek employment with a relatively large, sophisticated employer, and they won't be doing this.
CONAN: Good luck.
MELISSA: OK. Thank you.
CONAN: Here's an email from Jim(ph) in South Haven, Michigan: I have, at various times of my career, had clearance for unsupervised access to nuclear power plants around the United States. The background checks, psych evals and interviews of me and my friends and family took months. But the NRC, the Nuclear Regulatory Commission, never asked to see my Facebook. If the NRC doesn't want to see it, nobody else needs to.
I guess there's a point to be made there. And this from Turk(ph): I'm an employer. I don't ask for a Facebook password, but do look thoroughly on their Facebook page and will not hire offensive Facebook-paged people. If I'm a potential employee with my boss sucks or racist remarks, et cetera, I consider that person a liability.
So, again, caution on what you put on your Facebook page. Steven Kane, in this day and age, you have to be very careful.
KANE: Well, absolutely, but no employer that I know of would like to have an employee who makes racist comments. So here's a positive use of the medium for that purpose.
CONAN: Thanks very much for your time today. We appreciate it.
KANE: Thank you.
CONAN: Steven Kane, human resources expert, owner of Kane Partners, a human resources consulting firm. And he joined us from our bureau in New York. Coming up: The demon king of history. A new biography by A.N. Wilson raises questions about the legacy of Adolf Hitler. We'll talk with the author next. If you have questions about the right questions we ought to be asking about the legacy of Adolf Hitler, give us a call: 800-989-8255. Email us: email@example.com. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.