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According to a recent study, more than half of all employers have used or plan to use social media to help screen job applicants.  The study also revealed that more than one-third of employers rejected job candidates based on objectionable material they found on social media sites.

But it is important for employers that do use such sites to weigh carefully the advantages against the legal risks that such actions entail.  These legal issues involve such things as discrimination and retaliation claims, invasion of privacy, and violations of fair credit reporting laws that result from using an independent screening firm.

If an employer using a social media site also sees information related to a job candidate’s race, marital status, sexual orientation, religion, age, or other background information protected by federal law, they may be exposing themselves to discrimination lawsuits if they decide not to hire the person.  If the employer has investigated a candidate’s social networking site, it becomes harder for the employer to claim ignorance about the protected information.

Some employers have gone so far as to set up fake accounts or friend requests to try to find out some private information from a candidate’s social media site.  Legally, this may be considered an invasion of privacy.

Also, when a company uses an independent firm to do background checks on a job candidate, and the firm looks at social networking sites, the employer is subject to the requirements of the Fair Credit Reporting Act.  These FCRA guidelines require that the company disclose the contents of such a report if the employer uses it as reason not to hire a candidate.

Moreover, employers need to be aware that relying exclusively on social media sites for recruiting could open them up to charges of discrimination, by limiting the pool of applicants. Most of those using such sites are male, white, and younger.  A company must therefore show that other demographic sectors of the general population are not being denied opportunities for employment.

Using social networking sites has created a host of legal challenges for companies that  rely on such electronic investigations.  But trends indicate that the practice will only grow more common in the future, and companies need to familiarize themselves with the legal issues involved before they get into such investigations.  Doing so can prevent costly lawsuits down the road, and prevent the waste of a lot of time and effort.

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