Staffing Privacy Staffing and Privacy

Staffing Privacy

Staffing and Privacy Issues

The process of staffing a company, whether through an internal hiring department or through an outside staffing agency, requires a careful balance between conducting due diligence and protecting privacy rights. Accordingly, the research hereafter identifies a number of issues that require sensible and legally-informed action on the part of employers. Particularly, the discussion here indicates that a number of technological advances have precipitated the proliferation of personal information, including social networking sites like Facebook. Employers are under legal and ethical pressure to find ways of using and discarding information judiciously in order to avoid legal entanglement. Internal education and training, the discussion concludes, are the most immediate path to this end.

Executive Summary:

Staffing any kind of company requires careful decision-making. From the steps that enter into recruitment to the parameters of the interview process, it is important for the employer to learn as much as possible about the individual who may or may not be a new hire with the company in question. However, in this era of identity theft, the proliferation of personal information on the web and heightened sensitivity over matters of personal and company security, a prospective employer must also tread carefully to respect the boundaries of individual privacy. Simultaneously, aspiring employees will grant access to sensitive personal information, they will also be inherently protected by certain standards of privacy limiting either this access or how such access may be utilized. The discussion hereafter will consider the various issues which are associated with maintaining that balance.

Discussion:

Hiring new employees requires a careful and sensible screening process with a focused intent on yielding information sufficient to determine the candidate's suitability for the interviewing position. And it would seem on the surface that such procedures as the employee background check are naturally appropriate to achieve this aim. But the text by Waggott (2011) warns that the use of background checks must be done with extreme care and attention to the sensitivity of the information gathered there from. As Waggott indicates, just as it is valid for an employer to seek out information regarding academic credentials, previous work experience and criminal record, there are also risks in overstepping legal privacy boundaries. As Waggott asserts, "in order to maximize the advantages and minimize the risks associated with pre-hiring background checks, it is vital for employers to carefully consider what information they want and need, and exactly when and how the enquiries should be conducted. Thus, employers should avoid adopting a 'more is better' approach to collecting personal information about a job candidate, as unnecessary information may ultimately burden an employer with legal liability." (Waggott, p. 1)

Moreover, the text by Waggott goes on to indicates, the employer is under and obligation to protect the information gathered from this process and to prevent any undue viewing or usage of this information. As the text by Forster & Garakani (2007) indicates though, this protection of confidential or private information is increasingly challenging as well. Their research denotes that the employer's task of maintaining a balance between due diligence and the respect of privacy for employees is complicated by the role that technological innovation plays on the proliferation of personal information. According to Forster & Garakani, it is increasingly incumbent upon us to establish legal precedent for how best, as an employer, to access, evaluate and use the information that is not readily available on the internet. Forster & Garakani report on the opinion authored by Justice D.G. Stinson that in the case of Somwar v. McDonald's Restaurants of Canada Ltd. Here, Forster & Garakani indicate, Justice Stinson recognized that "with advancement in technology, personal data of an individual can now be collected, accessed (properly and improperly), and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual's personal information." Stinson would go on to contend, therefore, that "the traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual's privacy interest. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an 'incremental revision' and logical extension of the existing jurisprudence." (Forster & Garakani, p. 2)

This points to the general responsibility that is imposed upon the firm engaging in staffing, whether as a hiring firm or an agency charged with staffing on behalf of various hiring firms. Namely, a familiarity with and adherence to existing legal standards will be essential to preempting unwanted legal entanglement as might result from a disgruntled former prospective employee. This risk is underscored by the report offered by Draper (2012), which remarks that some employers in the Denver area had reportedly begun asking prospective hires for their Facebook password as part of the screening process. This marks a new level of interest in prying into the personal lives and social habits of prospective employees and suggests that the ways we use the internet are increasingly making this private sphere available for public consumption. However, it also marks what the Draper article calls a precarious ground for employers to tread. Draper indicates that in addition to the degree to which this policy has been perceived as a genuine privacy violation by prospective employees, "local employment attorneys say that the employers who ask for those Facebook passwords may have more to lose than job candidates: 'It's a dangerous area, and it can be a dangerous thing to do if employers don't take steps to protect themselves from different types of liability that may come up.'" (Draper, p. 1)

Particularly, with the availability of such private information comes the responsibility for employers to differentiate between that which is pertinent to professional orientation of the candidate and that which is not. Making this distinction can protect the employer from civil liberty-based litigation. Where Facebook is concerned, it may be difficult in the context of such legal proceedings to prove that such an invasion bears relevance to one's employment qualifications or suitability. Still, with the continued blurring of the line between the private and public sphere as facilitated by Facebook and other web-mediated social networking entities, it is not always easy for the well-intending employer to make the appropriate distinctions. As the article by Fleischer (2010) tells, in fact, many staffing firms and hiring departments have taken proactive steps to arm personnel with the required knowledge to navigate these new technologies and the laws surrounding them. According to Fleischer, "a hot topic for employers right now is keeping up with all the new technology and creating policies and practices to ensure lawful compliance with the employment discrimination laws as they intersect with all the new types of technology. We have noticed that one of our most popular webinars now is our webinar on drafting policies for the new social media including creating legally compliant policies for blogging, cell phones and text messaging. This webinar is so popular because employers are literally scrambling to figure out how to handle this explosion of social media in the workplace." (Fleischer, p. 1)

This denotes that many companies are aware of the increasing pressure to respect privacy even as it is incumbent upon them to find appropriate ways of using the wealth of information provided by online sources. With this said, there are also aspects of the relationship between a prospective new hire and potential employer which prefigure a certain implicit consent on the part of the former to the latter's access to certain otherwise private information. According to the article by Wiegele (2009), a number of concessions are made when an individual applies for a job and that in most instances, these concessions are in some manner indicated during the application, screening or interview process. Wiegele indicates that such practices as contacting prior employers for reference is a common procedure in the staffing process that implies a given transcendence of privacy considerations. Wiegele indicates that "employers often wish to know whether they are entitled to contact an applicant's references and what obligations they may have in this regard. With respect to obtaining consent to contact such references, it is accepted that an applicant who lists references on a job application or resume is implicitly consenting to a prospective employer contacting and obtaining information from those references. Similarly, it is generally accepted that an applicant who lists former employers is deemed to be giving consent to have those employers contacted for references." (Wiegele, p. 3)