Social Media Employment Background Checks: Sounding the Call for Regulation

Digital “footprints” on the internet may have an impact both pre-employment and post-employment, and these impacts may disproportionally affect non-mainstream groups whose information is being assessed against standards that are undisclosed and unregulated.  

A recent study (released 21 November) by Alessandro Acquisti and Christina M. Fong of Carnegie Mellon University explores this phenomenon.  Starting with actual information revealed on social media sites, the team created resumes, professional network profiles, and social network profiles.  The resumes were submitted to 4,000 real job opportunities with US employers.  The online profiles were then tweaked by the researchers to be revealing of either religion (Muslim or Christianity) or sexual orientation (homosexual or heterosexual) of the individual, while otherwise equivalent to each other.   

Interestingly, the study did not find that sexual orientation created significant differences in interview requests, but across the US the “Muslim” candidate received 14% fewer interviews than did the “Christian” applicant.  The variation by religious affiliation was especially pronounced when correlated with conservative political indicators by geographical region (areas that favoured conservative candidates in the last national election).  An online component of the study using the same (manipulated) profiles produced similar responses. 

Further, the study suggests that between one in three and one in ten employers were searching online for information about job candidates.

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This number is at the low end of the scale, but not inconsistent with previous research.  For instance, a 2007 survey of 250 US employers found that 44% of employers used Social Security numbers to check into the backgrounds of job candidates.   2006 survey data from ExecuNet demonstrates a similar pattern, with 77% of executive recruiters using web search engines to research candidates and 35% of those stating that they had ruled candidates out based on the results of those searches.  In 2009, Harris Interactive research showed 45% of employers doing background checks that included social media, while a 2012 Career Builder study showed that two in five employers used social media to check out prospective employees, and of those who did not do so, 11% indicated they planned to start. 

Although the Carnegie Mellon study was focussed on the effect of two narrow characteristics, the authors expressed concern that particular identifiers may not be the only factor exerting an influence on employment decisions. The mere fact a candidate chooses to post such information online may itself lead to inferences and conclusions by prospective employers. 

Acquisti & Fong note that prospective employers who inquire about religious affiliation during an interview open themselves to liability under federal or state equal employment opportunity laws—and also that the US Equal Employment Opportunity Commission has publicly cautioned against the use of online searches to investigate protected characteristics. 

Similarly, in Canada there is no explicit liability in the act of searching, but rather in the issue of whether hiring decisions are being made based on inappropriate criteria.  In other words, it isn’t just a matter of information found in such a search, but also in the (potentially unfair, possibly gendered, classed or sexualized) inferences that may be drawn from the search.

Though the study focussed on pre-employment checks, the issue of online searches does not become moot after an applicant has been hired.  PIPEDA applies to personal information about any federal employee, and other jurisdictions may also cover such information under some legal framework.  This protection is important because online searches may be a tool in disciplinary investigations. 

Self-censorship or meaningful regulation?

The conventional wisdom, of course, is always that individuals must take responsibility for their personal information and should carefully control what information is available online. 

This study is another confirmation that employer (and other institutional) use of online background searches, including social media sites, is an ongoing and increasingly normalized part of the employment relationship.  Given that this information is being accessed and used in pre- and post-employment situations, it is clear that such practices should be examined and regulated. This is necessary to ensure that, at the very least, only information that is correct and relevant will be used, and that the individuals impacted are aware of its collection and use. Mechanisms for the challenge, correction and redress of misinformation need to be established.

This is an emerging and accelerating challenge to individual privacy rights.  Policing the misuse of personal information should not be left as an exclusively individual responsibility – systemic utilization of such information requires a systemic policy and response.