Employers who want to use include social-networking sites into their background-check process when considering potential job candidates often ask whether they have to notify the applicant in advance that his or her Facebook page may be viewed during the hiring process. Unless you have a third party perform the Facebook search, the answer is “no.” Employers do not legally need the consent of a potential employee to conduct an Internet search and to view what is otherwise publicly available. But the mere fact that something is not legally required does not necessarily mean that it’s not a good idea. In fact, I’m an advocate of notifying applicants not only that you intend to review the individual’s online presence, including his or her presence on social networks, but also the specific items that you’ll be looking for when you do conduct the search.
There are a number of reasons that I believe this to be the best practice, not the least of which is that it is a better way to begin the employment relationship than “sneaking” a peek at the candidate’s personal life. Additionally, when a candidate knows in advance that a potential employer will be viewing his online activity but still posts content that portrays him negatively, you have a legitimate basis to question the candidate’s judgment, as well as his true interest in the position.
Employers who heed this suggestion and do want to notify candidates of the employer’s intention to review the applicant’s online profiles, then, the next question is, “How?” Employers often request sample language to include on the job application. I’ve written previously that a single sentence ought to do the trick. The sentence can be included in the section of the job application that addresses background checks. For those employers who want specific language, though, I offer you a sample provided by the federal government. Here is what the feds now include on job applications:
As part of the agency’s review of your application, the agency may view and/or access publicly available information about you, including information publicly available on the internet, that is job-related and consistent with the merit system principles and prohibited personnel practices set forth in the Civil Service Reform Act, 5 U.S.C. 2301, 2302. No information from any source may be used to discriminate for or against an applicant based on race, color, national origin, gender, age, political affiliation, religion, disability, marital status, sexual orientation, gender identity, status as a parent, membership or non-membership in an employee organization.
My colleague, Adria B. Martinelli, noted that there is one piece missing from this otherwise good language. In addition to the protected characteristics listed in the paragraph above, federal agencies should consider including “genetic information,” as well, to comply with the latest federal employment law, the Genetic Information Nondiscrimination Act (“GINA”), which, as Adria points out, may turn out to expose employers to significant legal liability in the context of social media and employees. For more on this very recent issue, see Adria’s post, GINA and Social Media.
See also these posts relating to social media in the workplace: