Background checks: an invasion of privacy or a legal responsibility? - RMI
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Background checks: an invasion of privacy or a legal responsibility?

Background checks: an invasion of privacy or a legal responsibility?

The news is filled with controversies surrounding falsified resumes and the plethora of damages it creates for companies. And yet, there’s still the question – is a background check an invasion of privacy?

It goes without saying that people seeking employment have basic rights. But the reality is, employers also have the right to know who they are hiring.

At the core of the debate is what’s actually private information. Most findings from a background check – be it a criminal conviction, the record of a civil court case, or even a college degree – is technically public record. So, the question really is, how do you balance the employers right to know with the candidates right to privacy. It’s a delicate balance between the legal and ethical factors that come into play.

3 reasons to conduct background screening:

1. Fraud

Statistics show that more than half of the resumes out there contain falsifications. The most common are dates of employment, job titles, qualifications and skills. Background screening is a reliable way of verifying claims made by job seekers during the hiring process.

  1. Reputation and Financial Loss

Loss to a business can come in the form of intelligence theft, data loss, and physical theft, not to mention financial losses from paying recruitment fees, to onboarding and training, only to find out that the new hire is not competent enough to perform the role. The statistics aren’t great – research shows 43% of data breaches come from an insider threat. A brand isn’t built overnight. Some of the most iconic brands are decades in the making. To a rogue employee however your customer personal data is only a mouse click away.

  1. Safety

Employers face legal responsibilities for the safety and welfare of their employees, customers, vendors and visitors. If an employer hires someone who harms another employee, the employer may face claims for negligent hiring if there is reasonable cause to believe that the employee might have a history of violence.

Companies also have an ethical responsibility

Notwithstanding, companies have the responsibility to handle candidates’ private matters ethically. To conduct background screening legally and transparently, an employer must ensure the candidate is aware of the checks and the candidate must sign an authorisation form permitting the checks.

That being said, an employer’s rights to conduct a background check are not unlimited. There are laws and regulations that limit when and how employers can use background information in decision-making. Employers cannot use racial or ethnic background, political opinions, genetic history, age, gender, maternity status or sexual orientation to deny a job.

Companies also need to be consistent in how they conduct their background checks and practice restraint as to what information really impacts job performance. If a candidate of a certain race faces a criminal history check or an education verification, then all other candidates should be checked also. Variation from position to position is expected depending on the demands of each role, but there should not be variations between candidates vying for the same job.

How about Social Media?

Many companies are resorting to social media background checks in what is perceived as an opportunity to save time and money. In most cases, these checks are well-intentioned – no brand wants one of their employees sending out offensive posts that could damage their reputation – but intention can be ill-defined.

Some companies are trying to circumnavigate privacy settings by asking candidates for social media passwords or forcing candidates to log into their social media profiles during an interview. This is not advisable since you move away from the realm of publicly available information into the murky world of private accounts. There’s also the risk that with the information uncovered, the hiring manager won’t be able to make an unbiased decision as there are no guidelines available defining what is deemed acceptable or not and this could lead to employment discrimination.

Verification is also a concern. How sure can hiring managers be that they’ve found the correct social media profile – there might be a lot of people with a similar name or profile.

There’s also no consistency. Many accounts are non-active, and others have tight privacy settings. Someone who is very active on social media could have a disadvantage over another candidate who doesn’t have a profile.

Relying on social media for background checks is a risky path that gives rise to privacy concerns. Many companies are stumbling into a mess of legal and ethical implications. This can be avoided with more traditional background checks which are less legally or ethically treacherous.

The bottom line

Employers have valid rights to perform a background check when given the consent to do so. Employees are the most important investment a company makes – the wrong choice can cost irreplaceable time, money and safety. But practicing true balance goes a long way towards making the entire process as fair as possible – and that’s the goal we should all aim for.