We all know that employers are getting savvy to social networking sites and the information we share online. But what you may not know is that conducted surveys shows that nearly 1 in 2 companies are doing their online due diligence for prospective job candidates!
So, should employers be allowed to screen job candidates based on their online behavior even if their actions are not pertinent to the listed job?
Norval Henry MS
Roli Gupta Pawar
David Sawyer, CPP
Norval Henry ,MPA
Thank you all for your valuable comments. We all know that social networking is fast becoming ubiquitous. According to a recent study, 40 percent of employers have decided not to offer a job to a candidate based on the results of that social media background check. It can seem harsh and like employers are being unfair on new prospects, but there’s good reason for business owners to be weary. With the rise of social media, it’s more likely than ever that a customer will encounter your employees online or that they’ll be representing your company to the world when you’re not looking. Sometimes protecting your business means not handing a loaded gun to someone who may blow a hole right through it. In the world of Twitter, would you trust an intern with your brand knowing they had a history of being quick lipped on their Facebook wall or berating old employers?
So, as nearly half of all employers have figured out, sometimes the best way to find out how a potential employee will represent themselves online is through a quick Google search , LinkedIn Profile, MySpace or even a Flickr, YouTube account and social media background check.
Now, before you go crazy searching their underwear drawer, realize that all employers may be subject to a BIG LAW SUITE!!
So the answer to the question about whether social media use in the hiring process is legal is a great big “It Depends.” Employers should stay constantly alert and make sure to keep up with the changes in social media as they develop. Understanding the laws that may apply is an important first step.
All the anti-discrimination laws that exist apply to employers using social media for hiring. Thus, it remains illegal for employers to base their hiring decisions on race; an employer that screens applicants based on Facebook pictures — only looking for Caucasian applicants — would obviously violate both state and federal laws on the subject. So for example, employers should:
----Train managers on the ways in which information gleaned from social media and from conducting a Google search on a candidate can lead to allegations of discrimination.
---- Have a consistent approach to conducting Internet searches in order to reduce liability exposure.
---- Provide hiring managers with ideas on how to get the information he or she is seeking to ensure that the best candidate is hired.
Some limited exceptions that may apply. Under some state and federal laws, it is permissible for employers to have a BFOQ — a Bona Fide Occupa¬tional Qualification, under which they can use the otherwise-protected information to make a hiring decision. However, this is a challenging area for employers, and HR human resources personnel should consult with legal counsel if a BFOQ applies.
Also consider the Genetic Information Nondiscrimination Act (GINA), which prohibits the use of genetic information in, among other things, hiring decisions. This prohibition specifically includes the conduct of Internet searches that are likely to result in obtain¬ing genetic information, even if it is publicly available. But GINA regulations do contain an exception. If an employer “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue” (such as an employee who posts family medical history on his Facebook wall, and his supervisor, with whom he is a Facebook friend, sees it), GINA has not been violated.
One approach to using Internet searches for job candidates appropriately is to delegate that responsibility to a third party or a non-hiring manager like HireSafe. Using this approach, the screener has a set of defined principles that are to be followed for each search. In this way, the employer can have a strong defense that its searches are not based on any protected characteristic and that it uses the same approach consistently.
Unfortunately, in solving one problem, the employer may have unwittingly created another. The Fair Credit Reporting Act (FCRA) may apply. It covers situations where an employer uses a background screening agency like HireSafe to seek information beyond just credit reports — including driving and criminal records, employment records and other public records.
Before obtaining any type of consumer report, an employer must:
---- Make a clear and conspicuous disclaimer to an individual, in writing, in a standalone document (not as part of the employment application), that a consumer report may be obtained for employment purposes.
---- Obtain the individual’s signed authorization to obtain the report.
---- Employers that then use those reports to make an adverse employment decision (that is, not hiring the applicant) must then make a copy of those reports available to the applicant and give that person an opportunity to respond.
Greg Basham 祈柏恆
It is not a question of should employers be
allowed. The real issue is what you do with the information you find
online if it is information the candidate for the job is not permitted
to be asked in a job application to avoid discrimination.
Here is the real nub of the issue.
Do you want your recruiting screening staff to possess information that
could lead to law suit? Do you trust their judgment in not shutting down
the process for someone you now found online that you don't want
working for you?
These issues must be thought through before your recruiting staff get
the information and make a judgment error that ends up costing your firm
and brand a serious hit.
I think these questions will likely suggest no you don't.
The biggest deterrent for an employer to go online and do this social
media searching is finding information that you are not permitted to ask
job candidates. The onus in a court case would be on the employer big
time. How can you then say "it was not the reason for us not to
consider this person?" You can't so you have a good chance of losing.
An example. I know from some work I did with the Rick Hansen Foundation
some years back that people with spinal cord injuries have unemployment
rates of nearly 40% in Canada. These stats are based on people who could
work if given the opportunity but for whatever reason people with
physical disabilities are not getting jobs or interviews if these facts
are known. If your check finds the person's picture on Facebook seated
in a wheel chair and you now don't call that highly qualified person in
for the interview despite having work that they could do and a wheel
chair accessible office. This could pose problems and complaints that a
company does not need.
However, if you understand these risks and trust that adverse decisions
will not be made based on the internet search that uncovers facts such
as the person is in their 50's and your firm hires no one over 37 then
go ahead but be very aware of the risks of a time consuming and brand
hitting law suit!
If a firm decides to go ahead and interview a candidate but has found
some postings on line in Facebook or blogs that are of concern and the
candidate is being seriously questioned for a role where judgment is
pertinent or where their presence in your firm in a key role could harm
your brand then a good employer will tell the candidate this concerned
them and ask them about it.
If it is a job requiring good judgment and the postings and information
suggest poor judgment it seems to me reasonable to ask such questions. I
wouldn't suggest you de-brief the candidate and use a blog post as your
main reason for passing over the person as an organization can select a
differing candidate with an equally impressive list of achievements and
skill sets. Note this last suggestion poses some risk but so does any
recruitment exercise. You might even want to consult your legal counsel
on this ahead of time.
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