Thailand Law Journal 2012 Fall Issue 1 Volume 15

The Legal Aspect of Social Media Employment Background Check and its Implications for Employees

By Parichat Janthori

1. Introduction

Advanced information technology has changed the way how people communicate with each other. Internet enables people to contact or to talk to one another around the world with a very tiny cost, but in a lightning speed. Internet has a great impact on how business is conducted. It increases transparency in the marketplace and provides efficiency by reducing time for communication and enabling the business transactions to be undertaken at any time from everywhere. Hence, Internet is widely adopted in many parts of business organizations, for example, in human resource management functions. Human resource professionals use Internet in a recruiting process. It helps organizations to communicate with job candidates, to attract them, and it is increasingly used in employee scanning and selecting process. It was cited in several surveys that employers are increasingly performing online background< check (Careerbuilder.com, Vault.com, Society of Human Resource survey). This refers to the act of reviewing both confidential and public information to investigate a person or entity's history. As an extensive background check is quite expensive mainly because of the time and effort necessarily used in exploring every item in a person or entity's history, employers are checking job candidates' background through information provided online, particularly in social networking sites (SNSs), as these SNSs provide a less expensive and quick source of background information. Since the information, pictures or any posts in the SNSs may have an impact on hiring decisions; it could cause bias against job candidates. People start questioning the privacy issue in social networking sites and legal right of the employers to perform online background check and whether this is ethical for employers to use social profile in formation as a factor in hiring decisions.

This article will provide an overview on how social networking sites are used in a recruiting process and explore some of the legal issues raised when online background check is conducted. It must be noted that this article will focus on the Facebook social network and its users.

The first section of this article will describe the social networking sites and how it is used as a tool for background check. The next section discusses the key legal issue relating online background check, namely the right to privacy. The conclusion and guidelines for employers how to conduct legally background check in the Internet will be provided in the last section of this article.

1. Social networking sites and online background check
Social networking sites or Web 2.0 represent a new stage of an online communication tool. It has become increasingly popular among the general population, especially among college students and recent graduates. Boyd & Elliso (2008) defined social networking sites as web-based services that allow individuals to construct their profiles within a bounded system, to articulate a list of other users, with whom they want to share a connection and to view and exhibit their list of connections within the system. The uniqueness of social networking sites is that it allows individuals to meet strangers and to get in touch with existing friend groups. With a variety features provided by SNSs, users can build up their profiles and decide whether to make it visible topublic or only specific groups of friends. Most SNSs provide opportunities to view friend lists, to leave a message on their friends' profiles, to share photos, VDOs or web links. The most popular social networking sites include Facebook, MySpace, Linkedln and Twitter. Among these, Facebook has the greatest number of users. By 2011, it was reported to have 500 million users around the world (Facebook, 2011); during Twitter has around 106 million users and mySpace 100 million users (Social networking watch, 2011). Because of its dominance in the field, this article will focus on Facebook, but the arguments also apply to the other social networking sites.

Facebook's main purpose is to help people communicate efficiently with friends, family and co-workers. Facebook users can create a personal profile and upload desired information such as personal photos, contact information, personal interest and status updates. Users can search for other users and add them into their friend lists. They may also join common interest user groups and like page to share interest, political view, sexual orientation, religion beliefs and any number of others personal interest (Ellison et ai., 2007). Lots of information is disclosed and shared through Facebook. Based on this ground, organizations are using Facebook and other SNSs to collect comprehensive information about job candidates.

In general, a recruiting process consists of different activities. Organization's first task is to identify and to attract potential employees (job candidates). Once the organizations have enough numbers of applicants or when the pool of qualified candidates is established, organizations will go to the next step: a screening and selecting process. This refers to the activity of collecting and evaluating the information about an applicant in order to extend an offer of employment (Gatewood et al., 2008). The recruiter organizations may use several selection devices such as the application form, interview, employment test, assessment centre and background check.

Traditional background check generally focuses on resume accuracy, criminal history, credit history, drug screening, educational backgrounds and refer ence verification. The aim of background check is to verify information and to determine the "fit" between the job and applicants. Theoretically, recruiter organizations will only take the information and the observation related to the job as the basis to predict the employee job performance in the future (Caers & Castelyns, 2010). As the background checks conducted through third party institutions can be costly, mainly because of the time and effort necessary to explore and verify every comprehensive details of a person, organizations tend to conduct applicant background check by themselves through Internet, by using social networking sites, as this provides an inexpensive and quick way to gather the basic information about job candidates. Starting with a search engine such as Google or Yahoo, recruiter organizations can link to job can didates' profiles, as some SNSs allow the Internet search engines to search the name of its users and make the profiles available for public. Recent surveys by various entities have confirmed the growing trend of employers conducting online check using SNSs. A study carried by CareerBuilder.com in 2006 revealed that 25% of hiring managers have conducted Internet searches by using search engines such as Google and 12% have looked at job candidates' profiles in SNSs (CareerBuilder, 2006).

A survey of Society of Human Resource Management indicated that 50% of human resource professionals ran an Internet search (Google, Yahoo), 15% checked SNSs and 40% of those who do not currently check said, they were likely to check within a year (Ziedner, 2007). The same trend was cited in Vault's Social Networking Survey, 44% of employers reported checking SNSs for job candidates' information (Vault, com, 2009). The survey from Jackson Lewis (LLP Survey) focused on New York employers as well as Global Interviewing Perceptions Survey in the United Kingdom reported that more HR professionals had searched on SNSs to gain additional information (HRtools.com, 2008, Peacock, 2009).