The Information Age has opened up new avenues for checking out potential employees, but it has also opened up your susceptibility to being sued.
“Using the Internet to check out applicants isn’t necessarily a bad idea,” says Neil Martin, a labor and employment partner in the Houston office of law firm Gardere Wynne Sewell. “The problems happen when it’s used as a blunt instrument rather than as a precision instrument. It all depends on what they do with the information that’s provided.
“Sometimes people believe that if it’s on the Internet that it must be true and do no further scrutiny of the facts.”
Job applicants are protected by the Fair Credit Act, which essentially requires employers to report what information they found and where it came from if that information affects their decision. It provides the employee an opportunity to prove the information may be wrong. With the wealth of information available, employers often find themselves getting too much information. This act applies to any consumer report that contains background, character, mode or style of living information.
“The information you really want to know is whether they can successfully perform the job,” says Martin.
Employers look to the additional information as a way of peering beyond the typical interview questions to get a glimpse of how applicants handle the mental and social aspects of their life which ultimately affect their job performance.
“Where the risk is from a legal proposition is that the employers do not receive proper authorization from the employees to do the search,” says Martin. “The Fair Credit Act has specified that the employee must consent before the information can be lawfully searched and used.”
While many applications have fine print containing a general blanket statement, under a legal challenge, that may not prove enough.
“The employee must be given notification of their rights, and it must be in plain and understandable language that they are consenting to having this information reviewed,” Martin says.
Following the Sept. 11 attacks, employers must now be very careful they do not do background checks on some potential employees based on national origin or ethnicity.
“Employers should not engage in profiling,” says Martin.
The only way to be completely safe is to make sure you perform the same checks on each and every employee.
