Background Checks: What’s Legal, What’s Not

In a recent discussion of Luddite lawyers, law firm professionals have already become aware of the importance technology plays in legal ethics. The phrase added by the ABA House of Delegates to Comment 8 to Model Rule of Professional Conduct 1.1 on Competence reads (in bold italics):

“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

Technology is not just guiding the conduct of lawyers, but it is guiding the conduct lawyers’ top clients, as well.

For example, does your firm know if your clients is making use of social media background checks? Is your firm even aware what a social media background check is?

Last year, Tumblr had a recorded 100 million blogs. So, chances are high that your next employee, or the employee of one of your latest clients, has a Tumblr blog. And, if not Tumblr, than WordPress, Blogger, Twitter, Weebly… the list goes on.

Online services provide a social media background check that examines all of these websites, social media platforms and Internet history, to screen for a variety of behaviors—drug use, racism, or any other conduct that might reek legal havoc for a future employer. Because in May 2011, the FTC gave a company called Social Intelligence the “ok” to run background checks of Internet and social media history, firms have a new technological human resources tool at their disposal. Do you—and should you—use it?

The website Gizmodo decided to test this social media background service on its employees. It turns out, the service Social Intelligence does a fair job at screening job applicants without (totally) violating their privacy. In its report, Social Intelligence blacks out information regarding gender or race, basically categories where employers are not allowed to discriminate.

However, the Gizmodo article’s author Mat Honan (who, incidentally enough, failed the online screening) insightfully considers the following scenario:

“Let’s say you’re a California-based employer and you do a basic background check on a job candidate. In scouring the Web, you discover a brand new Tumblr update that says ‘I’m pregnant!’ Holy impending mandatory paid time off! But you’re good a corporate citizen. That doesn’t matter to you. Yet for unrelated reasons, you hire a different candidate. Meanwhile, the rejected candidate sees your company’s IP address in her analytics program. She assumes you didn’t hire her because she’s pregnant. She sues. Now what?”

Does your application or hiring process include criminal background checks? Social media background checks? Are your policies and procedures in compliance with the EEOC’s new guidance?

You may think so, but so did Pepsi and its team of lawyers. Instead, the EEOC sued the company for using background checks in a discriminatory way and Pepsi paid $3.2 million to settle the suit. Pepsi also agreed to rewrite their background checking policy and procedures. When was the last time your firm did the same?

Luckily, there are resources readily available to your firm to make heads and tails of this tricky, two-sided background-check coin. The Center For Competitive Management offers “Background Checks: What’s Legal, What’s Not,” is a starter.

So, even if you think your firm and its clients are up-to-date, think again. The ABA’s new ethics requirements, in addition to Pepsi’s costly precedent, are a reminder of what’s at stake for your firm if you don’t.


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