Legal Implications of Social Media and the Hiring Process

MBA 610 Final Paper Legal Implications of complaisant Media and the Hiring treat Tammy Rider October 17, 2012 Social media has be manage one of the nigh classical tools in business practices. Companies can advertise their services and products for nothing or next to nothing, network with other businesses, generate new business, connect with their customers, and interpret a valuable re inquisition tool. It has changed the face of business as we grapple it. With this wonderful innovation comes responsibility. Employers and employees alike must face new rules and laws associated with their companionable media practices.One such practice that has become important in the business ball is the aim of well-disposed media during the hiring process. Some companies even off go so remote as to request phone line appliers for their partrname and passwords for such sites such as Facebook, MySpace, and Twitter. Where do the rights of employers and the rights of employees fit into th is new high tech world? The legal remains faces new challenges every day regarding this relatively young business quandary. Where should the lines of essay be move?How much amicable media pedagogy should an employer be permitted to use during the screening process for hiring a new employee? It has honourable recently come to the medias attention that some employers ask their job appliers for their Facebook login teaching and password. However, the truthfulness is that employers fill been utilize kind media to investigate these applicants for years. In 2011, Reppler, a social media monitoring service, conducted a survey of 300 hiring professionals to learn if, when, and how they ar use social media to screen job applicants.The study found that 91% of recruiters or hiring motorcoachs use social networking sites to screen prospective employees. Out of these recruiters and hiring managers, 69% revealed that they admit denied appointment to a job applicant due to somet hing they found on an applicants social networking site (1). Employers, however, should behave caution when using the reading they bob up to make a decision whether to hire an applicant or throw their application in the trash.It would seem that technology is come forwardpacing the law in this ara however, employers should very seriously review the information they risk and be sure that it does not lead to a liability downstairs the Fair Credit inform action, or some other put forward or federal employment discrimination laws. The Fair Credit Reporting Act (FCRA) states that an employer must provide a disclosure that a consumer piece or background mince go out be performed to their job applicants, and should nurse signed self-confidence by the applicant to proceed with this seek.It is also the job of the comp any to provide notice to the job applicant that they allow for suffer adverse action to not hire them before the company very takes that action, and provide a post-adverse action notice (2). It is interesting to note that these FCRA requirements do not apply to employers who perform their own background checks without using a consumer-reporting agency to obtain the information. Human resources hiring managers that perform a social media search on a job applicant are not flinch to these FCRA regulations to provide disclosure and gain consent from the applicant.This is where it gets tricky Although a hiring manager may not have to adhere to the FCRA regulations, they may still be confronted with other state and federal laws regarding employment discrimination and covert. In the past, employers have been very careful to not invade employee privacy, base any employment decisions on protected characteristics, or ask unlawful questions during the interview process. In the past few years though, employers have been using social media to screen applicants on a regular basis, whether formally or informally.By performing these pre-employment re search screenings on job applicants using social media profiles, employers are setting themselves up to discrimination claims under federal, state, and local laws. Since this area is still fuzzy and colourise as far as the law is concerned, employers need to stay cognizant and amend to protect themselves from potence law accommodates. Consulting with an attorney who specializes in this field would be a wise decision. As the laws evolve, so must the employers behaviors.By reviewing social networking profiles and information, employers are learning about job applicants religious beliefs, marital status, family relationships, race, ethnicity, health check conditions, and other information that cannot be used to make an employment-based decision. This is information that is considered as protected characteristics even though an applicant or employee has made it prevalent on a social media profile. As a result, employers must take care when performing such research.Ultimately, shoul d a discrimination claim arise, the employer will have the burden of proof to demonstrate that the decision to reject a job applicant was based on a legitimate non-discriminatory reason, quite a than the fact that the employer learned of the job applicants sexual orientation, the communicate due date of the job applicants baby, or any other protected characteristic. So the question that persists is how can we make use of social media without disrupting any discrimination laws?Some of the job-related information found in a profile may be highly valuable in determining an applicants qualifications for the job. One practical method is to precisely allow someone who is not involved in the hiring of the specific government agency to be the mortal who conducts the social media background check. Then, when the social media background check is completed, that person can summarize the job-related information that may be encouraging in considering the applicant, and can make no mention of the protected information (race, religion, medical condition, etc. that would otherwise get the employer into trouble. This way, the hiring manager, or ultimate decision-maker, receives moreover the job-related information, and can demonstrate that the information unknown to him or her had nothing to do with the decision to hire another panorama. Furthermore, before the job opening is even posted, employers should be clear about what they are really looking for in a social media background check, and whether it is necessary for the particular role.For example, the importance and uttermost of a social media background may depend on the position the company needs to fill (for example, a CFO position versus a seasonal stockroom employee). Certainly, employers should be doing enough pre-hiring due diligence to reduce potential claims of negligent hiring, and they must balance those concerns with finding out information that exposes them to liability for discrimination. There ex ists yet another level of privacy invasion that some businesses have been practicing. Asking for a job applicants login and password information goes beyond simply surfing the clear for research purposes.Some hiring managers get around this request by having the job candidate log into their Facebook neb, for instance, during an in-person interview. These potential candidates are put into a conciliative position. Should they refuse this request or just do it to keep them in the running for the job? Do these employer requests violate the federal Stored communication theory Act or the Computer Fraud and hollo Act? The laws surrounding the Stored Communications Act prohibit intentional overture to electronic information without authorization or intentionally exceeding that authorization, 18 U.S. C. 2701. The Computer Fraud and Abuse Act prohibits intentional access to a computer to obtain information without authorization, 18 U. S. C. 1030(a) (2) (C). Are these laws being violat ed when companies request login information from job applicants? It would certainly be a violation if the company broke into an account to access the information without authorization. The Equal Employment Opportunity Commission will have to determine whether employers who request this login information are violating anti-discrimination statutes.State legislators are outgrowth to unveil legislation that aims to prohibit this practice. In April 2012, Maryland was first to introduce a bill to ban employers from demanding Facebook or other social networking login information and passwords. Other states have followed or are currently following suit with bills of their own. For instance, California introduced the Social Media Privacy Act to legislature which would protect the social media privacy rights of students and employees (3).The law is attempting to catch up with technology, beginning with the states and expanding federally in the future. It is in this writers opinion that empl oyers should consider the non-legal ramifications of this social media dilemma in addition to the legal implications. By demanding this private information they are setting themselves up to lose some of their best employees or potential employees simply because they believe in their rights to privacy and refuse to give access to their social media credentials.Employers should weigh what is most important to them and evaluate what they stand to lose. Employee esprit de corps may suffer and an environment of distrust may take precedence. These conditions are not conducive to a healthy workplace resulting in piteous performance and poor productivity. Is this really worth the tiny bit of unneeded information that may be revealed by invading a persons social media profile? Businesses must stay on lift of developing legislation to protect themselves. Job seekers should also remain educated on their rights.It is sad to think that a person may find themselves wanted a job so badly they would be unforced to hand over any information that is requested of them. We will believably see the emergence of a new department in most companies. This department will be responsible for technology privacy education and enforcement which could save the business millions of dollars in lawsuits. The future of technology isnt backwardness down one bit. The law may never catch up, but it will keep pushing forward to protect the rights of employers and employees. Social media is just that social.What a person does outside of the workplace is, in most cases, of no concern to the business. As they say, dont mix business with your individualized life and vice versa. If we allow that to happen, where will the line be drawn? The line must be drawn now. Works Cited (1) Swallow, Erica, How Recruiters Use Social Networks to Screen Candidates, October 23, 2011, http//mashable. com/2011/10/23/how-recruiters-use-social-networks-to-screen-candidates-infographic. (2) http//www. ftc. gov/os/sta tutes/031224fcra. pdf (3) http//epic. org/privacy/workplace/