Is That Legal? Facebook, Background Checks & Drug Tests

By Kim Ann Zimmermann, ITTechNewsDaily Contributor

“Bill” was the go-to guy at work who got along well with his colleagues and earned a promotion. But when his co-workers Googled him, they found out he had been convicted of domestic violence, and no one wanted to work with him.

“Jane” was a mild-mannered office worker by day, but when her co-workers friended her on Facebook, they found she was a party girl. When they shared what they found with management she was denied a raise.

These kinds of revelations — and worse — are all too common in the wake of the development of social media. Figuring out what information is public and, therefore, allowed to be used in hiring and employment decisions is not as simple as it may seem.

Legal vs. available

“It is not necessarily illegal for employers and co-workers to discover this type of information online or through other means, but employers can’t use protected information such as age, race, gender, disabilities and sexual orientation when making hiring decisions or employment decisions once the person is working at the company,” said Roy L. Cohen, New York-based career coach and author of “The Wall Street Professional’s Survival Guide” (FT Press, 2010).

While many of those protections are a result of civil rights laws from the 1960s, today’s employers don’t need to go very far to find out a lot of things about their employees and job candidates that would have remained unknown before the digital age.

“The law trails the technology here and employers can easily find out things that they couldn’t easily find out before, and people often walk into an interview with a potential employer and the person they’re interviewing with already knows what they look like from their picture on Facebook, along with their age, race and marital status,” said Mark Neuberger, of counsel in the Miami office of Foley & Lardner LLP. “Employers can find out a lot of information that may or may not be relevant to making a good personnel decision.”

Here are some of the common methods employers use to research the background of employees and potential employees and a legal reality check as well.

Social media: Legal

As long as employers are not using information they discovered about protected subjects such as a person’s age, race or marital status, it is perfectly legal to check out someone’s social media pages. In fact, job candidates and employees being considered for promotions should expect employers to take their social media activities into consideration.

“While the law in this area is evolving and continues to evolve, it may be unrealistic to expect meaningful privacy regardless of the privacy settings placed on a social media page,” said Lawrence D. Bernfeld, a partner in the New York law firm Graubard Miller. “An executive recruiter, for example, may be a friend of a friend. Also, even someone who is a direct friend has the ability to capture a screen image and forward it to others.”

Representing both companies and executives, Bernfeld said that employers may view a person’s social media profile to verify information on résumés and to assess communication skills, among other proper uses. If employers discover Web-based information that the law protects against discriminatory use, they must not use such information in the decision-making process.

Employers and prospective employees are making use of social media sites before an in-person meeting. “More and more employees are using social media as a screening method,” said Jason Maxwell, president of MassPay, a human resources and payroll services company based in Beverly, Mass.

He said the one thing employers cannot do is create a false identity to lure someone into sharing information.

“But I’ve seen instances where someone called in sick and posted pictures of themselves at a Red Sox game,” and since the pictures were not obtained using a false Facebook page or other deceptive method, they were fair game for the employer to look at and use in making personnel decisions.

Melissa Giovagnoli Wilson, founder and CEO of Networlding, a Chicago-based consulting firm, said employers should establish rules of conduct for social media usage. “It should include information such as what would be cause for dismissal, such as sharing sensitive company information or using profanity.”

Contacting previous employers: Legal

“In many cases, you’re not going to get more than name, rank and serial number, but it is perfectly legal to check references,” Neuberger said. “Most employers are not going to share much more than that based on the advice of their lawyers.”

Background checks: Legal, with restrictions

In today’s economy, there are a lot of people with bad credit and superior job skills. While background checks, including credit checks, are legal, it is important to get the consent of job candidates and employees.

“The Equal Employment Opportunity Commission and the Fair Credit Reporting Act come into play when you’re talking about credit checks, as the EEOC in particular is making the argument that using credit reports as a condition of employment can be discriminatory toward minorities,” Neuberger said.

Neuberger said the use of some information discovered during a background check can be tricky.

“Again, the EEOC is concerned about the adverse impact on minorities,” Neuberger said. While criminal background is not off limits, he said some states are placing limitations on the use of this information. “Employers generally look at the recentness of the conviction and the age of the individual at the time,” he said. “A marijuana conviction 20 years ago is generally viewed differently than being convicted of embezzlement a year ago when you’re looking for work in the financial field.”

Drug/alcohol testing: Legal, with restrictions

While many companies have policies against drug and alcohol use on the job and require employees to submit to periodic testing, it is important that potential and existing employees be aware of the policies. “There should be procedures in place, employees should be made aware of those procedures and those procedures should be strictly and consistently followed,” Neuberger said.

Power – It’s a Good Thing

by Patricia Guerzo 

Think about the last time you were frustrated.  The problem was probably something outside of your control.  Being hit with a life challenge in one part of your life can sometimes make you feel powerless, and that feeling can linger.  If you could just flip a mental “switch” and get your mojo back!

While I have not found a switch per se, I have learned, observed, and practiced some techniques that can push away those frustrated, powerless feelings.

It’s helpful to look at the sources of power we can have.  The most obvious are reward power, and coercive power – the power of a bully.  While effective in the short-term, they are rarely appropriate for everyday situations.

Positional power is awarded to the boss.  Even if someone is not a powerful person, their title gives them power.  There’s not much one can do to tap into this source right away.  Fortunately, there are others.

Referent power is the power to attract others and build loyalty.  People with charisma, good looks, and interpersonal skills have a lot of this power.  They are powerful because people want to be around them.  Employees with referent power can stall company changes, or help them succeed.  Management needs to identify people on their team with this power source, and make sure they manage them.

Similarly, expert power comes from what you know.  People are drawn to your valuable expertise.  Experts are needed beyond their organizational chain of command, and may have a public presence.

Unlike positional power, referent and expert power are available for anyone to own.  You can become smarter, get into better shape, and learn how to be motivating for others.  Most of the ways to increase your power are free.  Books, blogs, and newsletters everywhere can tell you how to be a better listener, lose 5 pounds, or where to find your industry’s latest white paper.

So the next time you feel frustrated because things aren’t going your way, challenge yourself to increase your personal power.  Take a walk, read an article, call a friend to listen; they all will help.

Better yet, make a list of things you always wanted to learn, appearance-enhancing steps you might want to try, and ways you can improve your interpersonal skills.  Then when life delivers a challenge, you can select a way to regain some power and control.

To use this article in your newsletter or blog- you must include the following: Patricia Guerzo, President of GBSC, is an accomplished business executive with a proven record of enhancing bottom line results.  http://guerzo.com

Employee Issues Resolved

Have you ever thought one thing was your problem, only to find out it was something different?

In business, it is especially painful to solve a symptom instead of the root cause. The money spent is essentially wasted on a band-aid. Instead you should focus on preventative care or surgery that cures the root of the problem.

At Guerzo Business Solutions Center, we have heard employees described alternately as, “The problem that keeps on giving;” and “We are just like a family with the infighting and favoritism.”  Does this sound familiar?

In a small business, any dynamic can become an issue due to a lack of written procedures on the jobs, policies, and company. The problems that result look like unmotivated employees, finger-pointing errors, ducking and covering, turnover, and a lack of profitable growth.   Because the owner created the whole dynamic, he often does not have the perspective to change it.

This is where Guerzo Business Solutions Center can be your employee relations team.  With a MBA concentration in Organizational Design, and an Internal Auditor Certification, Patti Guerzo is well positioned to see the root cause and fix it the first time.

Here is a situation Guerzo Business Solutions Center (GBSC) addressed in 2010.

A 2-location medical spa was experiencing employee non-compliance to policies and disrespect toward management.  The negative environment was evident to clients, and was also causing staff turnover.

Our field process began with a DISC Assessment of each employee to understand their underlying personalities, and a confidential interview with each.  This led to a report of findings, which identified previously unknown issues.  After agreeing on each point, we prioritized the list, and GBSC created a project timeline.  Patti coached the owner and management to understand the rules and policies that created the friction.

The specific fixes and outcomes for this client:

• Job descriptions for all, included in the employee manual
• Revised policies, compliant with all rules
• Employee handbook rewritten to increase motivation and commitment
• Retool employee goal tracking system
• New Team incentive geared off company sales
• Assessment of how the business can increase profitability
• Two problem employees quit
• One problem employee was terminated
• Better morale and increased trust from remaining staff

The owner now has the confidence to make future changes without jeopardizing the progress he has already made.

What are the employee concerns in your company? Do you know? Imagine how your company would benefit from having a field assessment. How would your company morale, employee and client satisfaction grow through clear employee handbooks, tailored HR training and other proven techniques?

To use this article in your newsletter or blog- you must include the following: Patricia Guerzo, President of GBSC, is an accomplished business executive with a proven record of enhancing bottom line results.  http://guerzo.com/contact_us.asp