Stay Legal with Online Hiring Practices | DCR Workforce Blog

Stay Legal with Online Hiring Practices

Stay Legal with Online Hiring PracticesSome industries find that their major capital investment lies in their human resources. Such businesses invest a lot into recruiting and retaining the right candidates. Sometimes, these practices result in legal complications and unavoidable hassles. To illustrate, in an era of fierce talent wars, the agreement between the tech giants Google, Apple, Intel and Adobe to not poach on each other’s employees may have seemed like a smart strategy for survival. Now, an upcoming $3 trillion class action suit claims that it is an illegal practice. The result could set new boundaries for many such agreements in future.

In the meantime, let us ensure that our actions in other areas stay legal and compliant. Hiring practices of businesses are seeing a sea change. Companies are increasing their online presence, revamping their career sites, building company pages on social networking sites and holding virtual, online job fairs. Interactions happen live in an online environment, through video communication channels and instant chats.

Let us consider some risk mitigating measures to avoid possible legal pitfalls when you hire candidates online.

  • Screening of candidates must be uniform and inclusive and cannot incorporate any approaches meant to exclude candidates based on religion, location, race or other reasons.
  • Having your virtual job fair posting accessible only through online channels could eliminate eligible candidates who are not computer literate. People with visual impairment may also find the information inaccessible. Unless justified by business requirements, the hiring process cannot exclude people with specific disabilities or people from specific geographic locations. ,
  • Create an online presence which reflects your employer brand and ensure that your recruitment process establishes your reputation as an ‘equal opportunity employer’.
  • The Office of Federal Contract Compliance Programs (OFCCP) requires Federal contractors and subcontractors to maintain data on the race, gender, ethnicity and qualifications of Internet applicants or candidates hired via the Internet. This must be included in the overall reporting of labor force data.
  • Do not seek g candidate’s login or password information to their social media accounts, as most states in America have prohibited employers from this practice. Do let them know that you would be looking at their profile information, though a written permission may not be needed.
  • If choosing to access the candidate’s public social media profile for more information, it must be remembered that any protected information that may be revealed to you could be considered to have affected your decision to hire (or not to hire) that candidate.
  • Many employers choose to employ third party vendors to conduct background checks.   When using a third party for background checking, the employer is required to comply with the Fair Credit Reporting Act with respect to obtaining the candidate’s consent as well as handling the information obtained.
  • Retain screenshots of all social media research conducted, to show the actual information you have accessed. Saving screenshots will also help to demonstrate any legitimate reason you may have stumbled upon to make you refuse the candidate’s application. Some of the top reasons cited by employers for refusing someone’s candidature based upon their public social media profiles include the posting of provocative/inappropriate photos or information, information about drinking or using drugs, abusing a previous employer, bad communication skills, racist and discriminatory comments, and misrepresentations of skills or qualifications.
  • Making employment decisions based on a person’s genetic information is prohibited under the Genetic Information Nondiscrimination Act (GINA). Penalties imposed on any employer who obtains access to and misuses such information are severe.  When this is publicly available over the internet, or inadvertently obtained on a social site, the employer must ensure that the information does not factor into hiring, promotion, work assignment or termination decisions.
  • Make no objectionable or offensive statements or start online arguments in any of the online interactions with potential candidates.

Remember that technology and its attendant innovations can prove to be a boon or bane, solely depending upon how prudently they are made use of.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.