There have been dozens of news stories and blog posts about the Federal Trade Commission's recent decision regarding a company called Social Intelligence and the practice of pre-employment screening of job applicants based on their digital activity. Many of these pieces are misleading, and most of them are misunderstood. This post strives to correct errors of both omission and commission and promotes a fuller understanding of this important Digital Era practice.
I first wrote about the topic of social screening last fall, in a white paper entitled “Social Screening: Candidates – and Employers – Beware.” The paper was inspired in part by Social Intelligence and a couple similar start-ups I learned about at the HR Technology Conference. If you're not familiar with the practice of social screening, the white paper will help put this post in context and will further enhance your ability to draw informed conclusions about its implications for both candidates and employers. I encourage you to read it first.
DID YOU HEAR...?
Have you heard that a company called Social Intelligence (SI) has received approval from the Federal Trade Commission (FTC) to dig into all your Facebook activity for last seven years to find dirt on you on behalf of a prospective employer? Or that SI is creating a database they can dip into whenever you apply for a job to look for past indiscretions? Or that employers are hiring SI to find reasons to reject candidates for all kinds of legally-indefensible and morally questionable reasons?
Yeah, it’s not true. None of it.
If you do a quick search on “federal trade commission social intelligence,” you’ll find dozens of news stories and blog posts published over the last couple of months, most of which stem from a letter the FTC wrote in May regarding their investigation of SI. Many of these pieces have dramatic headlines that may entice readers but do very little to inform or educate them. In fact, the headlines are often misleading, which – combined with poor and/or incomplete reporting of the facts and their implications – tends to promote fear mongering and rabble rousing rather than thoughtful reflection and discourse.
Here are five pieces that came across my desk in the past month, in the order in which I received them:
- How Embarrassing/Job-Threatening Facebook Photos Are Part Of Your Job Application (Forbes)
- Social Intelligence Corporation Can Keep Your Social Trail for 7 Years (Social Media Today)
- Background Check Companies Scrutinize Your Online Presence (Tech Republic)
- Social Media History Becomes a New Job Hurdle (New York Times)
- Your Employer Knows Everything (The Chronicle of Higher Education)
The accuracy of these pieces varies widely. The NYT article was well researched and is the most factual/least sensationalistic. The Forbes post was initially full of inaccuracies, but I give Kashmir Hill credit for going back and setting the record straight. The Chronicle post is the most egregiously wrong.
Errors and misrepresentations in pieces like these is more than a little bit disturbing, especially given that they’re in widely read and generally respected and trusted media outlets. On the presumption that the publishers have high content curation and/or editorial standards, most readers assume the writers have done their due diligence and take their words at face value. When those words – either through omission or commission – convey false impressions, the result is emotional, knee-jerk reactions, exaggerations, and the spread of misinformation that further fans the flames of hysteria.
Call me old fashioned, but I believe we should focus on facts and have reasoned discussions about important topics that have serious implications for both individuals and organizations. I don’t see much value in being provocative simply for the sake of provocation. And perhaps I’m naïve, but I’d like to think that bloggers and other thought leaders can hold themselves to higher standards and avoid tabloid journalism. If your goal is to initiate a public dialogue, I think you have a responsibility to make sure you lay a truthful and accurate foundation for that dialogue.
But perhaps I digress. Getting back to the topic at hand…
FOCUSING ON THE FACTS
Here is a summary of the key facts and their implications with respect to SI and the recent FTC decision. This summary is derived from my own knowledge of pre-employment background screening and the Fair Credit Reporting Act (FCRA), the FTC’s letter explaining their decision, and Social Intelligence’s website. I also exchanged emails with Geoff Andrews, the COO of Social Intelligence, to get clarification on a fact presented in the NYT piece I wasn't sure about. Some of these facts are accurately stated in various articles/posts, but they seem to get lost in the presentation and ensuing discussion. Others, though critical to a complete understanding, have generally been omitted.
As noted above, I've written a white paper entitled “Social Screening: Candidates – and Employers – Beware,” which provides additional information and recommendations for both individuals and organizations. I’ve also written several related blog posts about the relative rights and responsibilities of individuals and employers, which are listed at the end of this post.
Understanding the Risks
FACT 1: The practice of social screening is not new, and it’s certainly not limited to companies like Social Intelligence. There are many studies indicating that employers and third-party recruiters have been “googling” candidates and checking out their digital activity for years.
FACT 2: The risks to individuals based on their digital identities and activities exist regardless of whether employers and companies like SI engage in social screening. Information about us is shared publicly in cyberspace all the time – both by ourselves and others. It is incumbent upon all of us to monitor our digital identities and take appropriate action to manage them (e.g., fixing our privacy settings, using strong passwords, deleting inappropriate content, abiding by the rules of civility).
FACT 3: For most job candidates, social screening is generally a later-stage activity, depending on the recruitment processes used. Because it is resource intensive, it usually occurs when the pool of candidates has been narrowed down significantly, and often just prior to an offer. By that point the candidates have already been screened on traditional criteria (e.g., skills, experience, cultural fit) and employers are focused on identifying factors that can create significant risks for them (e.g., engaging in illegal activity, disclosing confidential information). Minor indiscretions and lapses in judgment are unlikely to impact an offer decision.
Understanding the FCRA and the FTC’s Decision
FACT 4: With respect to pre-employment background checks, the FCRA only applies to companies who are hired to conduct these checks on behalf of employers. It does not apply to employers who do their own screening or (as far as I know) third-party recruiters.
FACT 5: There was no FTC “ruling,” and it hasn’t “approved” Social Intelligence or given it “permission” to do certain things. Although Social Intelligence has always declared itself to be in compliance with the FCRA, the FTC decided to launch an investigation to determine whether that was indeed the case. In the letter discussing the conclusion of their investigation, the FTC
- Indicated that SI does meet the definition of a “consumer reporting agency” and is therefore subject to the FCRA;
- Asserted that they found no evidence that SI was noncompliant with the FCRA; and
- Concluded that “no further action is warranted at this time” while reserving “the right to take further action as the public interest may require.”
Nothing in the letter should be construed as an endorsement or approval.
FACT 6: The FTC’s decision only relates to Social Intelligence’s pre-employment screening activities, not its employee monitoring activities (which are likely not subject to the FCRA).
- Job candidates must formally agree (i.e., in writing) to a background check in advance.
- If any negative information is found, the third party must undertake steps to ensure its accuracy.
- If an employer intends to take an adverse action against a candidate based on negative information that’s been discovered, it must provide the candidate with a copy of the third-party’s report, along with a statement of his/her FCRA rights, and allow the candidate to respond and/or dispute the decision.
- Any information that is determined to be false after the fact must be deleted from the search records and the report.
What does this mean for candidates?
- They’re given fair warning that a prospective employer is going to conduct a digital search, which gives them plenty of opportunity to conduct their own digital searches for publicly-available information to see what information/activity might be attached to them.
- If the official search produces negative information that they believe is false or misleading, they have the right and the opportunity to address those findings. There’s also a well-defined dispute resolution process they can follow if an employer decides to take an adverse action that they believe to be unfair.
Understanding Social Intelligence
(and similar companies that are FCRA compliant)
FACT 8: Social Intelligence’s searches are not indiscriminate, unfocused, and exhaustive; rather, they are specifically focused on criteria defined in advance by an employer, based on job-relevant and legally-defensible factors (click here for details):
- SI only searches for PUBLICLY available information. They do not access information that is private (e.g., password protected and/or not generally available on the internet).
- Information that doesn’t correspond with the pre-defined criteria are removed from the search results, as is information that is legally protected at both the federal (e.g., gender, age, religion) and state (e.g., sexual orientation) levels.
- Although initial sweeps are automated, negative results are carefully screened by human beings and verified to ensure their accuracy before being included in a report.
- In conducting their searches, SI can only go back 7 years, per the FCRA. Any information they find that's older than 7 years is not included in their results.
FACT 9: SI does not create a database of results that can be accessed for future searches. Each social screen is conducted independently, based on a specific employer’s criteria. To comply with the FCRA, SI does keep search results for 7 years, in case of disputes and/or legal action, but that data is not available for any other purpose.
FACT 10: Though it’s easy to vilify companies like SI, the risks for both individuals and employers may be much greater when social screenings are not conducted by an FCRA-regulated third party. When employers conduct background checks on their own, there are likely to be fewer checks and balances and a much greater risk of discrimination using legally-indefensible criteria and inaccurate/unverified information. Background screening companies offer disciplined, systematic processes that insulate employers and produce relevant, verified results. In addition, from the candidate’s perspective, the process is transparent, with built-in accountability and the ability to address negative results.
Regardless of how some individuals feel about it, the practice of social screening is more likely to increase than decline. FCRA-compliant companies like SI may not offer perfect solutions, but they are a viable option for managing pre-hire employment risks, and may even provide more legally-defensible approaches that better balance the interests of both candidates and employers than employers conducting these checks on their own.
But we’re still in the early days of the Digital Era, and we’re still determining the proper balance between the rights and responsibilities of employers and individuals. It's incumbent upon all of us to evaluate the ramifications of digital technologies in reasoned and reasonable ways to determine where the lines should be drawn and the best ways to move forward.
Please let me know if I’ve missed or misrepresented something. I also welcome questions and encourage exploration of and reasoned debate on the subject of social screening. Thanks.
- Courtney Shelton Hunt, PhD
NOTE: this post was updated to reflect the results of my email exchanges with Geoff Andrews, COO of Social Intelligence. It's also been revised to respond to some feedback I got from Chris Poirier about how the lead-in may have been a bit misleading (thanks Chris).
Disclaimer: I am not an attorney, and I have no connection to Social Intelligence.
- Social Screening: Candidates – and Employers – Beware
- Social Screening: The Expanded Discussion
- Digital Era Employment Practices Under Fire – Again!
Social Media and the National Labor Relations Board
- Is the NLRB Turning up the “Social Media Heat” too High? No… Not Yet
- The NLRB “Facebook Settlement:” Let’s Focus on the Facts
- The NLRB's Recent Action: Separating Fact from Fiction - and Unfounded Fear)