The Internet has introduced a number of technological conveniences since its inception. According to Unites Department of Labor (USDOL) the most commonly reported task for 77 million workers who used a computer at work was for accessing the Internet for using email. The proportion of workers who used a computer at work was higher for women at 61.8% compared with 49.9% of men (USDOL, 2003). Moreover, in terms of occupation, there were reported variations in the proportions of workers who used a computer at work. The computer-use rate was relatively high for managers and other professionals 80% compared with 67% of office and sales workers.
Internet recruitment has changed in [some ways] how the entire hiring process is conducted and understood (Lievens & Harris, 2003). There have been several assumptions made in regards to internet recruitment. Use of the internet is more efficient compared with traditional processes. Effective recruitment programs on the internet often result in repeat users. The cost to employers compared with traditional process is less expensive when utilizing the internet when recruiting.
Employers have admitted to using search engines to when conducting reference and background checks for prospective employees. In light of 9/11, many companies feel that their mutual interest in “potential liability” may be associated with preventing poor hiring practices. However, companies should proceed with caution when making business decisions that result in the utilization of search engines. Particularly, as it relates to a new employee. There appears to be little or no information on policies, legislation or laws that guide companies on the appropriate use of the internet, what types of information yielded by an internet search should be utilized when hiring a prospective employee and the possible risks associated with the practice. This may preclude one to suspect why the practice has become popular among companies. This article will explore if this practice is legal and should it also be considered as a best practice during the process of internet recruitment.
Employment Standards Administration
The Employment Standards Administration (ESA), the largest agency within the U.S. Department of Labor, enforces and administers laws governing legally-mandated wages and working conditions.
“ESA and its four component programs – – the Office of Federal Contract Compliance Programs, the Office of Labor-Management Standards, the Office of Workers’ Compensation Programs and the Wage and Hour Division – – have closely monitored and enforced laws protecting the wage, hours, equal employment opportunity, working conditions and injury compensation of workers. While each program has an established identity of its own, all works together to support, protects and defends the rights of American workers under these labor laws.”
“The vision of ESA is to achieve universally applied fair practices in the American workplace.”
“ESA will work to protect the rights of American workers and achieve compliance with the workplace laws it administers. We will work in partnership with leaders in business, industry, unions, city, State and local governments, public and non-profit interest groups, and other Federal agencies to increase the effectiveness of our enforcement and outreach efforts, to encourage voluntary compliance, and to assure equitable and fair workplaces. We will address customer and stakeholder interests and concerns by emphasizing quality in program administration and customer service, and will provide covered individuals who experience work-related injuries the best and most cost-effective assistance and services possible. ESA will also make effective, prudent use of available technology to accomplish program work and advance the statutory mandates of our programs.”
The term “potential liability” may also be referred as “limited liability” and this means the liability of a firm’s owners for no more capital than they have invested in the business. In legal terms, potential liability may also mean, when an employee brings a claim of retaliation that asserts the employee was subjected to an adverse employment action, because of their participation in a “protected activity.” The recent court decision of Anoints v. L’Oreal, the California Supreme Court reviewed the standard of claims of retaliation, expanding what amount to “protected activity” and what constitutes an “adverse action.” In hindsight, the decision rendered by the California Supreme Court meant that claims of retaliation would be easier to present.
Conducting Background Checks and Fair Credit Reporting Act
Background investigations are often conducted to in the employment context to verify a variety of information such as previous employment, educational history, credit history and criminal history. In some instances, background checks qualify as consumer reports under the Fair Credit Reporting Act (FCRA). The FCRA defines the term “consumer report” as “any written, oral or other communication of by a consumer reporting agency bearing on a consumer’s credit worthiness.” However, The FCRA exempts from coverage any report based on a reporter’s first hand experience of a subject, as opposed to information obtained from an outside source. §1681a (d) (2). This means that an employer may, using its own internal resources, conduct a background check, including calling former employers to verify prior employment and contacting universities to verify degrees earned, without implicating the FCRA (Foret, 2007). It is also important to mention that the FCRA requires that the prospective employee provides written authorization before an employer can access the consumer report. Once again, liability plays a significant role. Refer to Blanks v. Ford Motor Credit, 2005 WL 43981; the employer failed to articulate a legitimate employment purpose before obtaining the consumer report of the prospective employee. FCRA may impose civil liability on individuals and companies for negligence in terms of adverse employment decisions, if FCRA protocol was not followed.
Mentioning the FCRA as it relates to the position of this article is relevant. Because it does establish what the standard procedures should be for Human Resources departments and the recruitment of prospective employees
Utilization of the Internet and Prospective Employees
Does a real business justification exist for an employer to utilize a search engine like Google, when hiring a prospective employee? The financial argument seems to suggest that the cost of turnover may be estimated at twice the annual salary of an employee, when making a bad hiring decision. Moreover, most recently, internet sites like Facebook (a social networking website) has opened up its’ site to search engines like Yahoo or Google. Consequently, this action would suggest that job seekers should use caution when utilizing a website like Facebook. However, regardless of technology, employment laws still apply-when hiring a new employee. Furthermore, the vague language that accompanies vehicles like Safe Harbor offers that relate personal data may exacerbate increased confusion for companies in terms of legal interpretation.
• We may use personal information to provide the services you’ve requested, including services that display customized content and advertising.
• We may also use personal information for auditing, research and analysis to operate and improve Google technologies and services.
• We may share aggregated non-personal information with third parties outside of Google.
• We may also share information with third parties in limited circumstances, including when complying with legal process, preventing fraud or imminent harm, and ensuring the security of our network and services.
• Google processes personal information on our servers in the United States of America and in other countries. In some cases, we process personal information on a server outside your own country.
Reproduced from http://www.google.com
US Safe Harbor
The search engine Google is a member of the Safe Harbor Program which is managed by the U.S. Department of Commerce. The purpose of this program is the establishment of standards for privacy protection of personal data. These standards are applicable to European Union (EU) countries as well as the US. Even thought the US approach is different compared with the EU, the sectoral approach that relies on a mix of legislation, regulation and self regulation…guides US companies in the protection of personal data. What is unique about a participating provider in the Safe Harbor program, participants are deemed credible until the non-compliance is an issue. The penalty for non-compliance can result penalties administered by the False Statements Act (18 U.S.C. § 1001). “Depending on the industry sector, the Federal Trade Commission, comparable U.S. government agencies, and/or the states may provide overarching government enforcement of the safe harbor principles. Where a company relies in whole or in part on self regulation in complying with the safe harbor principles, its failure to comply with such self regulation must be actionable under federal or state law prohibiting unfair and deceptive acts or it is not eligible to join the safe harbor. At present, U.S. organizations that are subject to the jurisdiction of the Federal Trade Commission or the Department of Transportation with respect to air carriers and ticket agents may participate in the safe harbor. The Federal Trade Commission and the Department of Transportation with respect to air carriers and ticket agents have both stated in letters to the European Commission that they will take enforcement action against organizations that state that they are in compliance with the safe harbor framework but then fail to live up to their statements.
“Under the Federal Trade Commission Act, for example, a company’s failure to abide by commitments to implement the safe harbor principles might be considered deceptive and actionable by the Federal Trade Commission. This is the case even where an organization adhering to the safe harbor principles relies entirely on self-regulation to provide the enforcement required by the safe harbor enforcement principle. The FTC has the power to rectify such misrepresentations by seeking administrative orders and civil penalties of up to $12,000 per day for violations.”
Failure to comply with the Safe Harbor Requirements: If an organization persistently fails to comply with the safe harbor requirements, it is no longer entitled to benefit from the safe harbor. Persistent failure to comply arises where an organization refuses to comply with a final determination by any self regulatory or government body or where such a body determines that an organization frequently fails to comply with the requirements to the point where its claim to comply is no longer credible.”
The Internet is an effective and efficient tool utilized companies worldwide. In an age of globalization and economies of scale, companies are always seeking new methods and practices to decrease costs. Departments like Human Resources have been pivotal in company recruitment and employee retainment. However, this call to efficiency has its own unique set of consequences. Is it appropriate or legal for a company to use a search engine to when conducting a background check for a new employee? Based on in-depth analysis of the FCRA, Safe Harbor, Freedom Information Act, or standards enforced by the Employment Standards Administration, it appears there is no clear language that guides this particular practice. As a result, this practice may be subject to legal interpretation on a case by case basis. One may look to Yanowitz v. L’Oreal or Blanks v. Ford Motor Credit as a template. It does appear that the subject of internet usage and new hires has evaded the ESA’s vision statement. This may due to a complex arrangement of stakeholders and their respective missions as they relate to the overall vision of the Department of Labor. Perhaps, the practice of a company utilizing a search to conduct a preliminary background check has not yielded a negative outcome thus far. However, one may also preclude that the answer may lie within the enforcement of the Safe Harbor Act, which is managed by the Department of Commerce. Finally, there are several clauses that one may infer from the Freedom of Information Act as it relates to personal data, the internet and appropriate use of personal data during the internet recruitment process. It may be prudent for employers to use caution before proceeding with this practice. As a result, regardless of its popularity, it does appear that companies that consider this a best practice, may be exposed to additional risk and liability, if appropriate procedures are not established, managed and followed.
U.S. Department of Labor. Computer and Internet Use At Work Summary. Retrieved from http://www.bls.gov on December 26, 2007.
U.S. Department of Justice. (1996). The Freedom of Information Act 5 U.S.C. § 552, Amended By Public Law No. 104-231, 110 Stat. 3048. Retrieved from http://www.usdoj.gov on December 26, 2007.
Employment Standards Administration. [Online]. All About Employment Standards. Retrieved from http://www.dol.gov.esa on December 26, 2007.
Lievens, D. and Harris, M. (2003). Research on Internet Recruiting and Testing: Current Status and Future Directions. International Review of Industrial and Organizational Psychology 16; 131-165. Chicester: John Wiley & Sons, Ltd.
Muhl, C. (2003). Workplace email and Internet use: employees and employers beware. Monthly Labor Review, February 2003; 36-45.
Schau, T. (2000). Internet Use: Here, There and Everywhere. Occupational Outlook Quarterly. Winter 2000-2001. Retrieved from http://www.bls.gov on December 26, 2007.
Foret, R. (2007). Conducting Background Investigations of Employees and Applicants: Employers Must Proceed With Caution. Retrieved from http://www.hrresource.com on December 26, 2007.
US Department of Commerce. [Online]. Safe Harbor Overview. Retrieved from http://www.export.gov on December 26, 2007.