当求职者在社交媒体网站上向全世界介绍自己时，招聘专业人士利用这些信息来帮助做出正确的招聘决定的诱惑是巨大的。毕竟，除非申请人限制访问他们的帖子和推文，否则他们基本上是在传播公共信息。事实上，根据 CareerBuilder 最近的一项研究，55% 的公司受访者表示他们在 2009 年检查了求职者的社交网站。这一比例高于 2008 年的 22%。该群体中有 35% 表示做出了不利的招聘决定根据他们在社交网站上找到的信息。这些招聘人员很可能将他们的公司置于危险之中。
首先，存在一些疑问，社交媒体网站上的搜索结果是否可以构成“消费者报告”，这将使它们受到联邦公平信用报告法 (FCRA) 的监管。FCRA 概述了雇主在订购和使用 由“消费者报告机构”进行的申请人和雇员的就业筛选报告时的非常具体的要求 。例如，雇主必须在进行背景调查之前获得申请人的许可，并且如果他们要全部或部分根据背景报告中包含的信息做出不利决定，则必须遵守 FCRA 的不利行动前通知要求。FCRA 是否以及如何应用于社交媒体尚不清楚，但存在潜在的雷区。即使信息是公开的，来自第三方提供的这些来源的搜索结果是否可以被视为“消费者报告”？
不使用类似的社交媒体是一个复杂的问题。Jobvite 的一项调查显示，今年 80% 的公司使用或计划使用社交网站来寻找和吸引候选人。72% 的受访者计划在通过社交网络进行招聘方面进行更多投资。事实上，24% 的候选人在申请工作时披露了他们的社交网络存在。因此，希望利用社交网站提供的潜在候选人机会的公司面临着制定筛选和招聘政策的挑战，这些政策允许他们这样做，同时避免不公平或歧视性招聘。
background screening, and this is an area where companies should not wait to make policy decisions — the potential ramifications are too critical.
When job applicants tell the world about themselves on social media sites, the temptation for hiring professionals to use that information to help make good hiring decisions is huge. After all, unless the applicant has restricted access to their posts and tweets, they are basically disseminating public information. In fact, according to a recent study by CareerBuilder, 55 percent of company respondents said they had checked applicants’ social networking sites in 2009. This was up from 22 percent in 2008. Thirty-five percent of this group stated adverse hiring decisions were made based on information they found on social networking sites. These recruiters may well be putting their companies in jeopardy.
First, there is some question whether the search results on social media sites can amount to “consumer reports”, which would make them regulated by the federal Fair Credit Reporting Act (FCRA). The FCRA outlines very specific requirements for employers in their ordering and use of the employment screening reports of their applicants and employees conducted by “consumer reporting agencies.” E.g., the employer is required to receive permission from applicants before performing a background check, and must follow the FCRA’s pre-adverse and adverse action notice requirements if they are going to make an adverse decision based in whole or in part on the information contained within the background report. If and how the FCRA may be applied to social media is not yet clear, however a potential mine field exists. Could search results from these sources supplied by third parties be considered “consumer reports” even though the information is public?
Further, one of the biggest concerns with the use of social media in background checking is the potential it creates for discriminatory hiring claims. Many companies have stringent guidelines for their hiring professionals to not use any data supplied by an applicant if that knowledge might lead to discrimination, e.g., a decision based on the applicant’s sex, age, race, religion, etc. Recruiters will delete pictures and videos from resumes so as to eliminate any possible question of discriminatory practice. Visiting a person’s social media sites is likely to provide large amounts of information contrary to these careful non-discrimination practices. Certainly pictures may provide data on age, sex, race, potential disabilities, etc. Posts may provide information regarding religion, political affiliation, and legal social activities that might still bias an employer. In the event of a discrimination claim, the employer whose recruiters have seen this information will be on the defensive to establish that they were not influenced by it.
Not using social media similarly is a complex issue. 80 percent of companies use or are planning to use social networking sites to find and attract candidates this year, according to a survey by Jobvite. Seventy-two percent plan to invest more in recruiting through social networks. In fact, 24 percent of candidates disclose their social networking presence when applying for a job. Companies which desire to take advantage of the exposure to potential candidates that social networking sites offer therefore are challenged with developing screening and hiring policies that allow them to do so while avoiding unfair or discriminatory hiring.
When developing a social media screening policy, the company may want to:
• Provide notice to the applicant and ask permission to check the social media sites
• If accessing the sites without notice, then provide the applicant an opportunity to respond to what the company finds on the sites
• Not access the applicants’ social media sites at all – even if the company uses social media sites for recruiting
• Accessing the applicants’ social media sites without notice and without providing the applicant an opportunity to respond to what the company discovers may well be the most dangerous course of action.
As social media becomes more and more ubiquitous, legal standards regarding use of these sources for hiring purposes will become clearer. At present, to mitigate the risk of making discriminatory hiring decisions and to prevent against any issues with potential future regulations using social media, it’s best to err on the side of caution.