Human Resources & Social Media: Legal Liabilities
A few legal risks exist when human resources uses social media in a hiring decision, in addition to significant advantages.
Social media certainly changed how companies do business. More human resources departments use social media platforms for recruitment, employee engagement, training, internal communications, knowledge sharing and so on.
Recruitment, hiring and human resources providers (including startups like Ovation Technologies that provide pre-employment background checks) often use social media in the process of finding, hiring and onboarding new employees.
With the bigger presence of these tools, certain legal considerations exist. Due diligence is necessary when using social media to decide to hire and/or fire.
Recruitment and Hiring Using Social Media
There are few laws that govern the use of social media by human resources in recruitment, but there are some areas where recruiters and employers need to exercise caution:
Negligence
Using social media as part of the discovery process in hiring, the potential claims of negligent hiring increase. If questionable information is uncovered and ignored in the hiring decision, an employer could be held liable for the acts of the employee, especially harmful acts.
Fair Credit Reporting
The Fair Credit Reporting Act (FCRA) requires screening agencies and employers to follow set rules for using information from pre-employment background checks. If the information received from social media sites were used to deny hiring, companies may be required to provide proof of factual information in cases of a dispute. This may be difficult since an applicant can change social profiles at any time.
Discrimination
Social media profiles are source of information like gender, race and religious affiliation. The law prohibits the use of this information for hiring. Access to this info could have the organization subject to discrimination charges.
Social Media and Firing Employees
Passwords
More employers ask for employee passwords to social media sites. Both existing and potential employees see this as an invasion of privacy. These requests could affect your company’s public reputation. The federal Social Networking Online Protection Act (SNOPA) is a bill currently in Congress that could stop employers from asking for access to online content from job seekers and current employees. Passage of this federal regulation would protect employees nationwide.
Section 7 of the National Labor Relations Act
The National Labor Relations Act (NLRA) allows employees to participate in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 allows employees to use social media to initiate group action. Employers cannot suppress these rights, notwithstanding of any union presence. However, personal grievances that do not incite group action are not considered “concerted activities.”
For human resources to decide to fire an employee based on material from a social media profile, first observe Section 7 and seek the appropriate legal advice.
Corporate Social Media Policy Guidelines
The National Labor Relations Board requires any corporate policy regarding social media avoid being overly broad as to chill protected speech. Human resources departments should always seek the appropriate legal counsel when writing up a comprehensive strategy that regulates social media use.
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