Legal, regulatory issues making background checks more difficult

New HireRight survey sheds light on current trends in employment screening


Although there has been a lot of attention in the media about how companies are using social media to vet job applicants with Maryland’s recently passed law that prohibits employers from requiring current and prospective employees from turning over their social media information, Pickell said there hasn’t been much in the way of legislation nationwide on this issue. And while 61 percent of survey respondents reported using social media to recruit job candidates, only 24 percent said that they used it as part of their background screening process. Pickell said that there a number of reasons organizations have been hesitant to use social media as a part of this process.

"There are four general responses we get back when we ask that question… and the first one is that a company will believe that social media is something that is in the realm of private information to the individual and given the nature of their business and their culture, they feel like that is out of bounds for their objectives for screening," he said. "A bigger reason is companies are very rightfully concerned  about unresolved legal issues around social media and that comes in two forms - anti-discrimination laws… and the other area is really around rules that regulate a background check, which are generally under the Fair Credit Reporting Act and those rules were written around traditional written records. A lot of companies are taking a wait and see attitude because they don’t want to be on the leading edge."

Pickell added that since so many companies are using social media as a recruiting tool, in many cases they’ve already seen what an individual is posting in cyberspace while others may not believe it’s worth the effort of checking.  

While a majority of respondents (94 percent) said that they conducted background checks on job applicants, only 40 percent reported conducting checks on the extended workforce such as temporary staff. Though it may seem like many employers are opening themselves to legal exposure by not more thoroughly digging into the background of the extended workforce, Pickell said companies have made significant strides in this area.

"The way I would characterize this and the evolution of screening is, for many years, companies’ primary focus was on maturing screening programs for their primary workforce. When you think about the first half of the last 10 years versus the second half, companies really improved the sophistication, the maturity, they applied better technology around the core program and then they started saying 'hey, we’re doing a good job there, where else do we have exposure?' And the two areas that emerged were the extended workforce and non-U.S. employees," Pickell explained. "Over the last five or six years, the utilization of background checks across both of those classes of individuals has grown relatively significantly, but it’s nowhere near complete coverage."

Pickell said that many companies may also not be screening the extended workforce because the use of that labor is infrequent and low-risk, such as bringing in strategic consultants from a large accounting firm.

Pickell believes that employers need to continue to be embracive of technology in background screening, which will only further their goals of matching the right people with the right position while at the same time, protecting them from the potential liability of making the wrong hire. "I think companies have done an outstanding job of pressing the industry and suppliers to keep providing more value and better solutions," he said.