Imagine that you’re a hiring representative for your employer (in this case, a Burger King restaurant), and you’ve just discovered how to use MySpace. You decide to check the profiles of the employees who work the midnight shift. While perusing one employee’s profile, you notice a link to a video. As you click on it, you’re immediately faced with the employee, possibly in his birthday suit, taking a bath in one of the restaurant’s utility sinks.
You instantly imagine every horrible situation that may result from this incident: health violations, customers getting sick, bad public relations. You rightfully fire the employee for misconduct, but you can’t help but be amazed at how he felt completely justified in displaying his video to the entire Internet world.
That situation is no fabrication. It actually occurred at a Burger King in Xenia, Ohio. Although posting such a video displays a significant amount of immaturity, it’s no surprise that the lives of 18- to 24-year-old employees revolve around the Internet — specifically, their social networking pages.
College students update their Facebook profiles seemingly every five minutes, whether they’re adding a note about their opinions on a recent presidential debate or joining a social group that encourages businesses to “go green.”
For some employers, the fact that employees would release private information to the public is both reckless and incredible, leading to an immediate assumption that they exercise poor judgment. In reality, employers should expect a high percentage of all job applicants between ages 18 and 25 to participate in a social networking site.
Thus, the current economic market may lead employers to ask a very important question: How can today’s business coexist with social networking sites and the prospective employees who use them?
At first, HR pros may think it’s necessary to screen all job applicants by looking at their social networking profiles. Although there isn’t much legal guidance on the limits of social network screening in the private sector, potential legal risks are lurking right around the corner when employers make a hiring decision based on information on a website like MySpace.
To combat the screening process, social networking sites have begun working with, rather than against, the business community. This article explains how to avoid potential liability when conducting social network screening and discusses ways to use networking sites to your advantage — as well as the applicant’s — during the hiring process.
Potential dangers of social network screening
In the past few years, much has been said about the potential legal issues resulting from screening a job applicant’s social network profile. It’s important to remember that if someone is posting personal information publicly and intentionally, he cannot later complain about any type of invasion of privacy. However, be aware that visiting a job applicant’s MySpace page may give you access to information that employers otherwise are prohibited from inquiring about in hiring, such as disability, race, religion, or age.
If an employer doesn’t hire an individual based on her social networking page, be prepared to offer a nondiscriminatory reason for rejecting her application. Also, remember that some states have statutes that prohibit hiring decisions based on a candidate’s lawful leisure time activities.
If a company contracts with outside agencies to conduct background checks on potential applicants, it must comply with the Fair Credit Reporting Act (FCRA). Under the FCRA, employers must obtain a candidate’s consent before an agency may begin looking into his credit history and putting together a consumer report. Also, be aware that if the agency conducts an investigative consumer report in which it specifically interviews past associates to obtain information on the candidate’s character, he has a right to be informed about the scope and coverage of the investigation.
If a consumer reporting agency peruses a social networking page, employers run the risk of being accused of making a hiring decision based on character without following the FCRA’s requirements. Although the FCRA is silent about checking social networking sites for information, it’s in your company’s best interest to notify the candidate that social networking sites may be screened as part of the background check.
As with any hiring or firing decision, employers should develop a fair and uniform procedure when evaluating social networking sites. They must treat every applicant consistently to avoid potential discrimination lawsuits. Finally, remember to document everything to prevent any problems that may arise throughout the hiring process.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including employee privacy and hiring
Using social networking to an employer’s advantage
Young people in today’s workforce tend to want immediate access to information, including information about potential jobs. Many have already taken advantage of the advertising services offered through Facebook and LinkedIn to build professional contacts. Most likely, more and more young adults will use those services because they’re free to the public. In that regard, it’s in an employer’s best interest to create a company profile on the social networking sites to connect with potential recruits.
After creating a profile, companies will be able to immediately receive information about potential applicants. Social profiles will generally give employers a more holistic view of the candidates. That’s especially true in today’s market because young people are actively making their social profiles more employer-friendly. For example, some basic information gathered from a network profile can indicate whether a person has good communication or leadership skills based on his connections to social or civic organizations. Acquiring such information should give you a leg up in recruitment and hiring.
Employers should be aware that the job search is a frightening experience for young job applicants. Through a collaborative and inclusive atmosphere, social networks tend to relieve the pressure by allowing companies and recruits to establish relationships online. Young job applicants are sensitive to collaboration and individual feedback, so employer must treat them as individuals with a unique identity.
In reaching out to young applicants, try adjusting your company’s message to the laid-back and personal atmosphere of social networking sites. For example, people post videos or even essays detailing what they’re looking for in a job, and employers should respond to those posts accordingly. All of that adds to a communal atmosphere that puts the company and the applicant at ease.
A social network like LinkedIn focuses on that environment by providing a service in which peers and former employers can freely give recommendations about a particular applicant. This internal network immediately establishes a feeling of community among those looking for a career or trying to help a former associate with a positive recommendation. Creating a connection to potential job seekers is a vital consideration when looking for attractive recruits.
Finally, young job applicants want to be passionate about their work, or at least proud of what they do. It’s important to show potential employees that the company can lead them to a more meaningful life. Employers can take a step in that direction by posting about their contributions to local charities or their participation in local civic organizations. Taking the time to educate recruits on your company’s values may be the deciding factor in landing the best applicant for your company.
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We live in a world dominated by the Internet and digital technology. Now more than ever, employers must embrace the evolving customs of today’s generation instead of creating shields against them. Establishing proper guidelines for conducting social network screenings and creating an identity within the networks themselves will put your company in the perfect position to coexist with Internet sites dedicated to social networking. There’s nothing wrong with change if it moves in the right direction.
About: West Virginia Employment Law Letter:|
Excerpted from West Virginia Employment Law Letter and written by attorneys at the law firm of Steptoe & Johnson PLLC. WEST VIRGINIA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of West Virginia does not certify specialists in the law, and we do not claim certification in any listed area. For further information about the content of this article, please contact any of the attorneys at Steptoe & Johnson PLLC.