Lexington, KY - As recent news reports about alleged embezzlement schemes in Lexington have shown, hiring the wrong employees can cost your organization a lot more than many companies may realize. But employers looking for reliable information about job applicants are finding their job harder these days. Many who go beyond the job application to find out the "rest of the story" are increasingly concerned about whether or not the methods they use to gain a better picture of their possible new hires are legal.
If you've faced this problem, you might find it helpful to review the following scenario about the applicant screening methods of the hypothetical company Seymour's Superstore and the steps its HR manager might need to take to avoid potential legal problems.
Hiram's new plan
Hiram Jones, HR manager for Seymour's Superstore, has become frustrated in his attempts to obtain reliable background information about job applicants. Lately, he has decided to try some different techniques.
First, he has hired Barry Brewster, a private investigator, to look into applicants' credit histories and more.
Second, he has decided to search as many social networking sites and blogs as possible, such as Facebook, MySpace, LinkedIn, and college interactive Web sites, to see what he can find about job applicants. Seymour's has several college interns working for it who have agreed to let Hiram use their passwords when a college's interactive Web site is limited only to current students and faculty.
Is Hiram's new plan a good one? What potential problems do these methods pose?
Hiram's second thoughts
Hiram may need to take a couple of steps back.
First, he needs to be sure that the applicants he screens have provided their consent to the types of searches he contemplates. This can be done as part of the application process. His failure to do so could possibly expose Seymour's to a breach of privacy claim, or, in the case of electronic searches, to a violation of the Electronic Communications Privacy Act of 1986.
Hiram's plan to engage Barry to investigate applicants' credit history, criminal background and personal character probably triggers the provisions of the Fair Credit Reporting Act ("FCRA"). If Hiram relies on any information reported by Barry when he makes employment decisions, he may need to jump through a number of hoops mandated by the FCRA, including providing the applicant with written notice of the fact that a report will be used in the hiring process and obtaining written authorization before the report is actually obtained. While it may make sense for Seymour's to subject itself to those requirements for employees who will handle money or security for the company, it probably does not make sense for floor sales staff, filing clerks, etc. (If Hiram or his staff conducted these searches themselves, without the assistance of Barry and without obtaining a credit report, Seymour's would probably not need to be concerned about the FCRA.)
Hiram also needs to be careful about how he utilizes the information he receives. If he decided to reject, for example, every applicant who had been arrested for any criminal offense, and it turned out that the only applicants who had arrest records were primarily of one race or national origin, Seymour's could find itself exposed to legal liability.
Hiram is on firmer ground in searching social networking sites, at least when searching readily retrievable information. However, where the information is password protected or otherwise restricted, employers violate the restriction at their peril. Hiram should not accept the offers of the interns to use their passwords to find information on applicants that would otherwise not be available to the average person.
Again, Hiram must be careful how he uses the information he finds on blogs and social networking sites. If an employee reveals in her blog that she has a disability, for example, Hiram must not make an employment decision on that basis without taking the prohibitions of the Americans With Disabilities Act into account. He must also be careful not to base his employment decisions on searches that might be deemed discriminatory.
Bottom line
As long as job applicants have consented to the specific types of searches you use to screen applicants, you should not be exposed to an invasion of privacy claim if you utilize those search methods. However, you should keep the requirements of the Fair Credit Reporting Act in mind if you engage a third party to furnish a credit or character report and confine Internet searches to readily retrievable information. By doing so, you will hopefully be able to reduce hiring mistakes, while also steering clear of legal claims.
Wendy Becker is a member in the Lexington office of Greenebaum Doll & McDonald PLLC. This article is provided as general information rather than legal advice. Questions about individual situations should be directed to legal counsel.