The use of social media in the hiring process has important legal ramifications that employers need to be aware of. While the content and postings by job applicants on social network sites is in the public domain, considerable legal problems exist for employers over the use of the obtained information if it infringes upon legally protected areas of privacy. This section discusses compliance issues primarily in the United States and also in Japan. Recently, there has been a lot of publicity over some employers requesting Facebook password and login information from job applicants. While this practice caught the media’s attention, the reality is employers have been using social media to investigate job applicants for years. According to a survey conducted in 2011 by Reppler, a social media monitoring service in the US, 91% of the recruiters and hiring managers stated they have used social networking sites to screen prospective employees. And, 69% of these recruiters and hiring managers revealed that they have denied employment to job applicants due to something they found on an applicant’s social networking site. Employers therefore need to be very cautious when using information that is obtained from social media when making hiring decisions. In litigation happy US, this can be a veritable minefield. Though the technology has outpaced the law, employers should be sure that the information they receive does not lead them to liability under the Fair Credit Reporting Act (FCRA), or under various state and federal employment discrimination laws. 2. Pre-employment Background Check
What is FCRA? FCRA governs pre-screening obtained from outside agencies. This law sets out various requirements and rules for pre-employment background reports, called Consumer Reports. Under the FCRA, employers must provide to job applicants (and employees) a disclosure that consumers report/background check will be performed and the employer should obtain the individual’s authorization to proceed with the check. Checks include medical, criminal and credit histories etc. FCRA states, among other things, that the most accurate up-to-date information must be used when screening and evaluating an applicant for employment. Companies who conduct their own in-house background checks does not fall under FCRA, but also face risks in crossing legal and ethical boundaries. Both will be discussed below. Importantly, the FCRA requirements do not apply to employers who perform their own background checks. Thus, for example, if the employer’s own human resources personnel, or if the hiring manager, performs social media research on a job applicant, the FCRA does not apply to those actions. This searching is facilitated by the availability of smart phone applications for this type of research. The Federal Trade Commission (FTC), which enforces the FCRA, has already warned a few of the companies providing these smart phone applications, but the FTC has not yet determined that an employer’s use of these smart phone applications is subject to the FCRA. Consequently, employers should be sure to understand the requirements and procedures of the FCRA, and are recommended to consult with an employment attorney. Employers should also be sure to monitor the “apps” they are using to learn whether the FTC has decided about a certain smart phone application. As the law evolves so must an employer’s behavior. 3. Privacy and Anti-Discrimination Laws
The topic of privacy is much more volatile. First let’s discuss from the job applicant perspective. Some argue that the applicant has surrendered the right to privacy by putting this information out there on a public forum and that they should be mindful of what they post. Some describe as akin to putting out your garbage out on the street. You have given up reasonable expectation of privacy and anyone is free to go through it. Most people would find that quite intrusive; especially if someone were to...
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