How to Avoid Hiring Mishaps

By Lester S. Rosen

Education Credentials

With the recession bringing higher unemployment, employers will need to scrutinize applications even more carefully for inflated or fictional academic degrees. The number of degree mills and Web sites offering fake diplomas has skyrocketed, adding to the problem. In fact, my dog has received a very genuine-looking diploma in business administration purportedly issued by the University of Arizona through an online diploma-selling service.

In 2004, a scandal erupted after an internal government watchdog agency reported that 28 senior officials who were then serving in the federal government had degrees from diploma mills or unaccredited universities. To address this problem and help employers sort the good from the bad, the U.S. Department of Education established a Web site that lists schools with legitimate accreditation. (Access the site here.)

As with other types of fraud, the criminals are always adapting. In response to the government’s efforts, degree mills have created fake agencies to accredit the fake degrees.

Anytime an applicant claims to have earned a degree—and especially when that credential is a requirement for the job—an employer needs to take steps to ensure not only that the applicant went to the school and received the degree, but that the school is legitimate and that the degree represents genuine educational accomplishment.

Social Networking Sites

Employers have discovered social networking sites such as Facebook or MySpace as potential sources of intelligence about applicants. However, the fact that information is available online does not mean that it’s a good idea to use it without developing policies and procedures.

For example, if an Internet search reveals information that cannot be factored into a hiring decision, such as an applicant’s ethnicity, national origin, sexual orientation, religious preference, or marital status, the company could be exposing itself to a discrimination lawsuit. A similar issue can arise if the search of social networking sites reveals a photo that indicates personal characteristics or physical disability.

Once the hiring organization obtains prohibited information, the applicant could infer that he or she was eliminated from the candidate pool due to a discriminatory practice. An applicant could argue that the information influenced the hiring process, and it is very difficult for the company to prove that it did not.

Privacy is also a potential issue. Sites such as Facebook or MySpace have “terms of use” policies that appear to limit the use of such sites to personal social networking. Facebook or MySpace users could argue that they had a reasonable expectation of privacy, since they only expected that others who were interested in social networking would be viewing their materials. The use of a pretext to bypass privacy settings to view a profile, such as creating a fake online identity, would likely cross the line into a violation of privacy.

Some states have statutory protections in place to limit an employer’s consideration of a worker’s off-duty conduct. Courts might view the use of information from social networking sites as crossing the line into consideration of off-duty behavior.

Cases addressing the relationship of social networking sites and hiring decisions have yet to find their way to federal appeals courts. Meanwhile, employers should proceed with caution. The most conservative approach would be to only view these sites after consent is obtained and there has been a conditional job offer. This process guards against allegations of invasion of privacy or discrimination.

However, even at this stage, employers must be certain that they consider only information that serves as a nondiscriminatory predictor of job performance. For example, one employer looked at an employee’s social networking page after tendering a conditional offer only to find that the applicant had publicly posted derogatory comments about his past employers and coworkers. The employer considered the action evidence of unprofessional behavior and withdrew the offer. This is valid and legally defensible.

International Scope

Given the mobility of workers across international borders, an employer’s obligation of due diligence may no longer be limited to employment screening just in the United States. A 2000 government study shows that 11.5 percent of the population consists of immigrants, and an increasing number of workers have spent part of their professional careers abroad.

Employers cannot assume that the U.S. government has conducted background checks on workers who hold visas. Government checks appear to be aimed at reviewing watch lists rather than verifying credentials or checking criminal records for employment purposes.

Given these issues, employers should consider background screening internationally for criminal records, employment history, and education credentials. Standard background checks conducted in the United States do not include international employment and criminal records. One caveat is that international checks typically take longer and are more costly than domestic screening, but they can be worth it if they help a company limit its exposure to future liability.

Extended Work Force

Another issue during a recession is the increased use of temporary and contract employees. Many firms that have comprehensive procedures in place for their full-time work force routinely open themselves up to risk by not properly vetting personnel provided by staffing agencies or other service providers.

Companies should require that temporary workers, vendors, and independent contractors undergo screening equivalent to that done for staff. These third parties should be subjected to regular audits to ensure compliance with the screening protocols.

To implement an effective background screening program, companies must dedicate themselves to screening both thoroughly and effectively. To do this, employers must consider a variety of factors, from the quality of criminal records to the wisdom of using social networking sites as sources.

Lester S. Rosen is an attorney and president of Employment Screening Resources, a background screening firm headquartered in Novato, California. He has authored two books (The Safe Hiring Manual: The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace and The Safe Hiring Audit: The Employer’s Guide to Implementing a Safe Hiring Program). Rosen chaired the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as the organization’s first co-chair. He was a member of the committee that formulated the ASIS Preemployment Background Screening Guideline and is also serving on the revision committee.



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