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Thread: Question from UK law student

  1. #1

    Question Question from UK law student

    Hello,

    I’m a law student currently studying in Manchester, England. I’m completing a placement with a local law firm called (deleted by moderator) and they’ve asked me to prepare a research paper on the differences between labour law in the UK and the USA. I figured this would be a good place to get some advice!

    I’ve been asked to look into how companies handle social media vetting on both sides of the Atlantic. I think both countries have similar laws concerning employment discrimination, but I wondered if anyone could shed any light on the rules around what you can and cannot take into consideration when basing your hiring decisions on social media research.

    In the UK, many hiring managers will simply hand the social media vetting process to someone with legal training, and then this person will feedback all of the information that is legally permissible. This way, it prevents unconscious bias and also keeps everyone on the right side of the law. Can anyone comment on the way this is handled in the USA?

    Thanks!
    Rebecca
    Last edited by cbg; 05-18-2017 at 10:02 AM.

  2. #2
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    The last time I did any hiring was before the advent of social media so I will defer to others for their thoughts. However, Rebecca, just FYI, your post almost got deleted and your account blocked for spamming, because of the live link to the solicitors you are working for. I checked your IP address and found that it does apparently originate where you said it did, so I am tentatively taking you at your word for who you are and what you are doing. Other posters are free to respond to your questions if they wish. However, any further live links will also be deleted and will cause me to question your motives. There's really no reason for us to know who you work for and they would probably prefer that you not advertise them here. We've had some rather nasty spam issues in the past and we're all a bit gunshy

    That being said, I am not objecting to anyone who cares to answering Rebecca's question. I am not doing so just because I haven't done any hiring since 2002, long before social media was a presence.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Not my area of expertise but I can say that there are no federal level social media laws, so you basically have a half-dozen or so labor laws, each of whom in theory has its own opinion on social media. Example, Title VII (a 1960s law) covers hiring decisions to the extent it effects race, religion and a few other factors. But the law itself does not mention social media. So it is the action which is protected, not the method, if that makes any sense.

    One other big difference between USA and UK law is that we have 50 states and labor law differs (a lot) state to state. I had this general discussion with our European Controller, and she thought I was pranking her. (Nope - it really is that messed up). There may indeed be some states with actual social media law. Plus most court decisions only cover their specific area of the country. I am guessing that 99+% of all social media "law" is actually just court decision that mention social media.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    That is a loaded question and DAW did give a great answer -- you have levels of federal, state and sometimes local nondiscrimination laws that come into play.

    That said, there are a lot of things that it is best not to know, but not illegal to know. Just illegal if you used that as the basis of your recruiting, hiring, wages/benefits or working conditions. For example, many first names are obviously a specific gender (although that is less these days). Or based on an in-person interview, you find out all sorts of things that you may or may not use (for example, the State of Michigan has a law that protects the weight of an individual, so you can't take that into account unless it is a 'bonafide occupational qualification").

    Here is some guidance from the EEOC on it: https://www.eeoc.gov/laws/practices/ (underline and bold are mine) at the federal level

    "Pre-Employment Inquiries (General):
    As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.
    Employers are explicitly prohibited from making pre-offer inquiries about disability.
    Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries may be used as evidence of an employer's intent to discriminate unless the questions asked can be justified by some business purpose.
    Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant's race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided.
    Similarly, employers should not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted."

    In the end if a complaint is made, the employer needs to be able to prove that they didn't hire for a reason unrelated to those above and had some other justifiable business purpose.

    Do prospective employers look at social media? Honestly I don't know any that do not at least do a cursory view. I always suggest to all to lock down the privacy of your social media accounts and be careful of what is public. Google your name and see what comes up about you outside of a normal background check. That said, as HR I am generally the one doing the BG checks and rarely do I ever pass on any information I find from social media, unless it is directly related to the position itself -- for example if the applicant has current or former employees as friends but fails to note that on the application or shows a personality that would not be a good fit for our culture (example: lots of foul language/pictures).

    It is very tough for an applicant to ever know the reason they were not hired, especially when 100s of people apply for the same position and only 1 will get it. It's easier to see disparate impact in hiring than interviewing/recruiting (after the fact does the employee population represent the community statistics and/or are more of one group hired disproportionately to other groups?)

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    Not the question, but in a perfect world, the employer NEVER gives the hiring manager any information that they should not be using to make a hiring decision. IMO, having the hiring manager look a social media is a REALLY BAD IDEA. I am not saying that HR is perfect, but it is easier for them to understand the rules then a whole bunch of hiring managers whose primary jobs are unrelated to HR. So, never collect information you cannot legally use, but also if for whatever reason the information followed you in when you were not looking, keep it away from the hiring manager.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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