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Legal Issues Surrounding the Use of Social Media to Recruit and Hire

On October 28, 2010, I am presenting this topic for the Law Seminars International Social Media Law Conference I am co-chairing here in Houston.  The full title and description is “Looking in: Keeping tabs on the human resources department’s performance of due diligence on potential hires; dealing with rogue employees engaged with blogs, Facebook, Twitter, and other forms of social media.”  

I finished the first draft of the paper which covers discrimination, the Computer Fraud and Abuse Act, defamation, invasion of privacy, pretexting, the Fair Credit Reporting Act and a best practices section.  What am I missing? 

The most conservative “best practices” approach I have seen on this include policies that:

1.       Specifically list the sites that may be used, at what stage they may be used and a rule requiring that every candidate who reaches that level must be vetted in the same exact way.

2.       Use a non-decision maker to review the social media profiles and then have that person forward only information that may be considered and specifically excluding any information that should not be considered in the hiring process (age, race, religion, etc.).

3.      Require each applicant to acknowledge that an internet search will be conducted much like many applications make employees acknowledge and consent to a criminal background check.

I guess the application could require a job seeker to provide his login name and password to every social media site so the employer can look at each one, but that may taking it a step too far.  Any other suggestions?