The Management of Industrial Relations

The Management of Industrial Relations How Has The Management Of Industrial Relations In Britain Changed In The Last Three Decades? What Does This Tell Us About The Respective Roles And Influence Of Employers, Management, Trade Unions And The State In Industrial Relations? This paper attempts to examine the changes which have taken place during the 1980s, the 1990s and the period 2000-2010 within the field of industrial relations. According to Edwards (2003:9) The employment relationship is by definition a relationship between an employee and an employer this direct relationship may be mediated by the two other key institutions to IR, the trade union and the state. Therefore this essay will also seek to explore the respective strategies, roles and powers of these actors. The paper has two sections; the first one represents the 1980s and the 1990s whereas the second one represents the period from 1997 into the last decade. In the first section the essay starts by describing the interventionist role that the Conservative government of Margaret Thatcher adopted when it came in power in 1979. The legislations passed by the government constitute the reason of the development of very confrontational industrial relations throughout the two decades as they caused an imbalance of power in favour of the management and against trade unions. After seeing the legislative initiatives launched by the government the paper will attempt to describe the advantageous position of managers and employers who managed to re-exert managerial prerogative and to impose harsh managerial strategies. With the power always on their side managers imposed their own â€Å"rules† in the employee relations and showed a preference for individualism (employee/management relationshi p) rather than collectivism (union/management relationship) as they saw benefits such as greater flexibility and greater control over employees. Managers in the UK also start placing attention to HRM policies in the 1980s and seek to implement them in an effort to achieve business goals. But evidence suggests that they failed to implement appropriate Human Resource Management strategies. After that this paper will examine the decline in union membership, in unions ideology and therefore the decline of their overall power. In the second section of the essay we will study the period during which â€Å"the New Labour† was in power. In its effort to put an end to the special relationship it had with the trade unions in the past and to promote neo-liberalism the â€Å"New Labour† kept most of the legislation of the previous government but also established its own. Its main goal was to promote workplace â€Å"partnership† which meant that all actors; employers, employees, trade unions and government would work in collaboration to obtain mutual benefits. The strategies implemented by the government in order to promote workplace â€Å"partnership†, on the one hand helped in fostering employee involvement and communication within the workplace and on the other hand helped unions to reassert some of their lost power. During the period 1979 and 1997 the government clearly allied itself with the side of managers and employers in an effort to protect capitalism (Salamon 2000:92). Later on we will see that the alliance between employers and government against trade unions and the unequal distribution of power meant the beginning of an adversarial employment relationship and industrial relations. Committed to its liberalist/laissez-faire ideologies the Conservative government of Margaret Thatcher which came in office sought to achieve one goal: to aid management to reassert its authority and power by constraining the power of trade unions. By adopting a very interventionist role the government proceeded with the launching of eight legislations within thirteen years and targeted at curbing unions ability to organise, their ability to pursue industrial action and particularly strikes and it interfered with their internal affairs (Salamon 2000:103). Salamon (2000:65) itemises a number of laws passed by the government during the period 1989-1997 and which account for the decline of the power of trade unions: The Thatcher Conservative government abolished the closed shop and removed the statutory recognition procedure. It prohibited secondary industrial action. Trades unions were required to ballot union members and proceed to industrial action only with the consent of the majority. The government legally enforced the trade unions to use the ballot process for their national elections. Although the costs of conducting ballots were initially subsidised by the government, the Trade Union and Employment Right Act of 1993 put an end to the provision of funds but the procedure was still legally required (Salamon 2000:152). Furthermore they were considered responsible for unlawful actions authorised by unions officers, committees or shop stewards unless they denounced them. Unions were deprived of their right to punish members who opted not to partake in industrial action even if it was legal. In addition to all these, it was easier for employers to fire employees who took part in strikes. In addition to the legislative restrictions that the government imposed on trade unions it also proceeded with the abolishment of tripartite institutions on which the trade unions were represented such as the MSC and the NEDO (Salamon 2000:65). During the 1980s and 1990s managers saw the balance of power shifting towards their side. This was due as we have seen to national legislation suppressing trade unions. Salamon (2000 :248) argues that this reassertion of power as well as the economic climate with the economic recession, the high rates of unemployment and the competition taking place at the international level prompted managers to adopt a managerial style called macho management. Purcell (1982) cited in Salamon (2000:248) explained macho management as the style of tough managers who neglected and scorned trade unions and whose ultimate interest was to manage and establish order. They were characterised by a great unwillingness to change their policies, to negotiate and to make concessions and they preferred dealing directly with employees rather than through unions. This desire to deal with employees on a individual basis also accounts for the a shift from collectivism to individualism. In other words managers used to have to deal with employee issues through their intermediaries that is to say bodies that represented them, such as trade union whereas now they have to confront employees directly (Salamon 2000:66) . Salamon (2000:82) also explains that the new strategies initiated by the management during the period meant that employees were now engaged through individual contracts and whose terms and conditions were different than the rest of their colleagues and that their reward was dependent on their individual performance. Salamon (2000:66) explains that managers embraced individual employment relationships rather than collective ones as they were more flexible. This flexibility and this emphasis on individualism was also explained by managers attempt to introduce Human Resource policies which made their apparition in the UK in the early 1980s and promised managers what they sought: organisational effectiveness and increased performance (Salamon 2000:234) by eliciting employee commitment. According to Salamon (2000:235-236), these strategies were also ways of enhancing managerial authority because employees were directly now accountable to managers, managers were more able to obtain control and now had the freedom to design strategies that would limit empowerment conceded to employees, and set some boundaries to the terms and conditions of the employment contract. Generally from now on they had more freedom in the decision-making while at the same time employees were committed to them. Once more Salamon (2000:239) explores the possibility that managers took advantage of HR practices in order to manipulate employees and claims that in reality managers only desire is to be able to do their work with the slightest possible confrontation from employees. Kessler and Purcell (2003) claim that there is little evidence, from the WIRS data, demonstrating that organisations were willing or had the potential to use HRM strategies. Instead during the period most managers opted for Bleak House strategies. They also claim that managers mostly resorted to opportunistic and cost minimisation strategies. On the same tone, Blyton and Turnbull (2004:129) explain that the economic downturn during the 1980s and 1990s, the acute international competition, the low skills equilibrium in which the UK was entrapped and the feelings of job insecurity made it impossible for employees and employers to develop the trust needed for the implementation of HR practices and therefore the management relied on opportunistic and pragmatic strategies. The issue of employee voice and most particularly employee representation elicited great attention by the government and the management when the European Court of Justice held in 1994 that the legislative initiatives of the government run counter to the EU directives and that the UK had ended up not respecting employee collective consultation rights. The Conservative government was enforced to amend its regulation which had come to mean that managers should either recognise unions at their workplace or/and set up other forms of collective representative bodies elected by the employees. This prompted some organisations too set up work or company councils. The creation of these councils raises three issues. First of all, they might be a threat to employee rights because managers might use them to by-pass trade unions. Secondly, they are not legally recognized so they have no rights and thirdly, employee representatives in these councils have not the training or experience of trade unio n officials and might therefore not elicit the attention and the respect of the management (Salamon 2000:188). As an example Salamon (2000:189) presents the case study of Bristol West, a non-unionised company which in 1994 introduced the â€Å"partners councils† which were employee representative bodies which allowed employees to express their opinion on the firms Human Resource issues. Although the councils were reserved only for employee representatives the company tried to ensure that there was a professional or manager with them. However, according to Ackers and Payne (1998) cited in Salamon (2000:260), it turned out that the reassertion of managerial authority , the HRM strategies introduced aiming at promoting individualism and employee voice and participation and the decline of powers of trade unions did not give to managers what they sought: order, cohesion and employee commitment. That is why they turned to the â€Å"workplace â€Å"partnership approach in pursuit of these goals. The governments hostile position towards the trade unions as well as the harmful measures it took against trade unions had as subsequent repercussion the decline of union membership. This is illustrated by the figures presented by Salamon (2000:67) according to which during the period 1879-1998 union membership dropped by 5,5 million and by the figures provided by Blyton and Turnbull (2004: 139) which demonstrate that during 1979 and 1997 the number of trade union members fell by over 41 per cent. Nevertheless Salamon (2000:109, 111) also reckons that union membership experienced a striking decline in membership in the 1980s and 1990s because of the changes that took place in industrial and employment structures. The economic conditions of the time meaning low inflation and high levels of unemployment kept workers away from joining unions. Unions used to recruit as members full-time male manual workers who worked in large manufacturing firms as well as the public sector. The shift fo r the manufacturing sector to the service sector, the reduction in the size of firms, the rising female and part-time employment had meant that the trade unions not only lost members but they also had to turn to other types of industries and organisations, in order to seek members, which had not been easy because these organisations had no tradition in union organisation. Diamond and Freedman (2001) cited in Blyton and Turnbull (2004: 143) mention that many unemployed union members had no inducement in maintaining their membership because trade unions were not concerned by people who were on welfare while Cully et al. (1999: 212-213) cited in Blyton and Turnbull (2004:143) argue that other employees contested the unions ability to offer benefits and that is illustrated by the WERS98 data according to which only a 46 per cent of union members believed that trade unions actually provided them with benefits. The trade unions collective consciousness was also negatively affected by the governments legislative measures aiming to (Salamon 2000:152) promote ‘responsible unionism, ‘return the union to its members and protect the individual member against union ‘tyranny. Through the Employment Act of 1988 union members obtained individual rights to inspect the unions financial data to ensure that funds were not spent on illegal actions, to resort to the help of court in case the union would be pursuing unlawful industrial action affecting the member, to be protected from being punished by the trade unions whenever they refused to partake in industrial action even if it was lawful. Salamon (2000:153) argues that now the individual member had the right to refuse to accept and to call into questions decisions of the unions even if they were taken democratically. The individual member could go against the unions. Salamon (2000:124) also argues that the ideologies on which trade unionism relies with the most important one its â€Å"collective solidarity† had also declined due to the fact that trade unions started offering â€Å"modern services† to employees individually. The decline in union membership and collective solidarity that have been already discussed overwhelmingly account for the erosion of power of trade unions. Nevertheless other factors have also contributed. Trade unions found themselves not only confronted to managers and employers who have always been reluctant to cooperate but they also had to face the governments hostility (Salamon 2000:111). Moreover the trade unions were further alienated due to the shift from the concept of collectivism endorsed by trade unions to the concept of individualism embraced by the managers who introduced HRM practices such as direct manager/employee consultation and information or performance-related pay. Salamon (2000:118) discusses the loss of the power of conducting collective bargaining by trade unions due to three main reasons. First their collective bargaining power was curbed by the legislation launched by the Conservative government. Secondly there was the decentralisation of collective bargaining, meaning that the terms and conditions obtained in collective bargaining were no longer applicable across an industry. Furthermore the managers tended to prefer deciding the terms and conditions of employees based on an individual basis as well as to opt for a system of remuneration based on the individuals performance or ability. Millward et al. (2000:197) cited in Blyton and Turnbull (2004:150) claim that during the period 1984-1998 the proportion of employees covered by collective bargaining dropped from 70 per cent to 40 per cent. During the 1980s and the 1990s trade unions were on the defensive. They tried to survive during the 1980s and early 1990s because of the unfavourable economic, political and organisational conditions. In other words they had no choice but to make concessions in order to be become more attractive to managers. These concessions included the establishment of single-union agreements with no strike activity and employee councils (Salamon 2000:130). In 1997 The â€Å"New Labour† came in power with the intention to promote its neo-liberalism strategies. In the past the Labour party had close links with the trade unions with the most significant one their financial contributions to the party (Salamon 2000:122). However when it took over in 1997 it attempted to distance itself from the trade unions and in its intention to do so, it maintained most of the legislative initiatives of the predecessor government. Nevertheless it launched two laws in support of the trade unions. The first of them was the National Minimum Wage Act of 1998 which allowed for the introduction of a national minimum wage (Salamon 2000:68). The second one was the Employment Relations Act in 1999 which allowed for the establishment of a statutory procedure permitting union recognition, provided that an employer could not refuse to employ, punish, fire or discriminate against an employee who is or intends to join a trade union or has taken or intends to pa rticipated in industrial action. The legislation provided for time off from work for trade union officials of independent recognised trade unions without pay loss in order for them to respond to their responsibilities within the union and also allowed for union members to be accompanied by trade union officials during grievance and disciplinary procedures (Salamon 2000: 197). The labour government also signed the social protocol of the treaty of Maastricht and as a result the European Working Time directive as well as the European Works Council directive became part of the UK law (Hyman 2003:54). In addition, the government passed legislation regarding part time employment and parental leave. From the late 1990s towards the beginning of the 2000-2010 period the UK workplace experienced the emergence of the notion of â€Å"partnership† a notion that alludes to the idea that the state, employers, employees and trade unions can collaborate in order to achieve common targets and benefits (Salamon 2000:21). The emergence of the workplace partnership approach was allowed when the â€Å"New Labour† came in power. This approached seemed to be desired by the main actors involved in industrial relations who saw it as the solution to their concerns. The government was determined to eradicate the conflicts in the UK workplace, trade unions saw it as a way of striking an alliance with the management and the government in the pursuit of common benefits and the management saw is as way of achieving order and cohesion at the organisation level as they wished (Salamon 2000:260). Salamon (2000:263) highlights two attributes of the â€Å"partnership† approach which are the commitment for actors to cooperate in order to enhance organisational effectiveness and performance and the recognition that employers and employees have different interests and that is why they should use employee voice and communication mechanisms in order to foster their relationship. Blyton and Turnbull (2004: 253) mentions that during the last years the Labour governments wish to promote the aforementioned â€Å"partnerhip† and the European social policies and Britains effort to put in place the EC Information and Consultations Directive have resulted to an acute interest in various forms of employee involvement and participation. Apart from the improvements that took place during the previous two decades in the matter employee voice and employee representation with the set up of work councils (Salamon 2000:188) , the new governments decision to accept the European Work Council Directive has strengthened even more employee voice but most particularly the adoption by the management of direct forms of participation. Kersley et al (2006:139) searched for evidence of direct forms of communication such as face to face meetings, written two-way communication and downward communication and found out that 63 per cent of all workplaces offered face- to- face meeti ngs as well the opportunity for feedback, and that this figure covered 67 per cent of all employees. They also argued that the WERS2004 data demonstrated that there was a decline in union representation and an increase in direct forms of communication. Although union membership and union recognition had fallen between 1998 and 2004 this decline was much smaller than during the 1980s and 1990s. Between 1998 and 2004 methods of employee representation dropped from three-fifths to approximately one half. On the contrary direct forms of communication were more common and sometimes they had increased (Kersley at al. 2006:143) This emphasis on employee involvement and participation is illustrated by the case study provided by Marchington and Wilkinson (2008: 407) who mention the example of Midbank a firm which won a Saturday Times award for implementing high commitment Human Resource policies and facilitating Employee Involvement and direct and indirect methods of Participation. More precisely, some of the forms of information dissemination as well as employee participation they adopted were the presence of a single union, consultation forums and company newspaper to which employees could contribute. Within the context of partnership Johnstone et al (2007) cited in Marchington and Wilkinson (2008:417) give us the case study of NatBank which signed a partnership agreement in 2000 with the recognised union (Unifi) in their effort to ameliorate the union-management relationship , to contribute to organisational effectiveness and performance, to work for the interest of employees, shareholders and customers an d to commit to the implementation of best practice HRM. The partnership has so far proved to be a success with some of the advantages being a better decision making, and improved employment relations thanks to better communication. From 1997 trade unions were given the opportunity to reassert part of their lost power and influence due to the favourable legislation launched by the â€Å"New Labour†. Trade unions were now able to abandon their defensive position of the 1980s and 1990s and to adopt one more proactive position. Salamon (2000:21) argues that trade unions considered â€Å"partnership† at work as a way of developing a more positive and proactive relationship with managers and play the part in order for the idea of â€Å"social partnership â€Å" to successfully work. This would simultaneously allow them to defend their members interests and to contribute on their part to the workplace and society (Salamon 2000:21). Munro and Rainbird (2004) present the example of the UNISON/employer partnership, a partnership concerning workplace learning and explain that the partnership does not only generate benefits for union members but it also generates benefits to employers who provide cost-effec tive and high quality development to employees through this partnership. The government also seems to be placing great emphasis on this partnership as it has passed legislation (Employment Act of 2002) allowing to Union Learning Representatives to take paid time off in order to carry out their duties and most significantly it has set up the Union Learning Fund. Moreover in 2007 the government conceded the management of the fund to Unionlearn within the TUC acknowledging in this respect the important role of unions in governmental strategies.(Hoque and Bacon 2008). This essay has endeavoured to examine the changes in the roles and in the exertion of power of the actors involved in industrial relations, and most particularly the roles of the government, of the trade unions, of the management and of employers, during the 1980s, the 1990s and the period 2000-2010. It has demonstrated that during the 1980s and the 1990s the legislative agenda of the Conservative government led in very confrontational and adversarial industrial relations as it increased the gap between employers power and trade unions power. Macho management, shift from collectivism to individualism and the attempt of the introduction of HRM practices are the most important processes of the period. In 1997 the â€Å"New Labour† which was elected in power committed itself to implementing the European social model, by promoting fairness and social justice in UK industrial relations as well as harmonisation by promoting the model of â€Å"workplace† partnership. References Blyton, P. and Turnball, P. (2004). The Dynamics of Employee Relations. 3rd edit., Basingstoke: Palgrave Macmillan. Edwards, P. (2003)(ed.). Industrial Relations: Theory Practice in Britain. 2nd edit., Oxford:Blackwell. Hoque, K. and Bacon, N. (2008). Trade Unions, Union Learning Representatives and Employer-Provided Training in Britain. British Journal of Industrial Relations, 46(4), 702-731. Hyman, R. (2003). The Historical Evolution of British Industrial Relations in Edwards, P. (2003)(ed.). Industrial Relations: Theory Practice in Britain. 2nd edit., Oxford:Blackwell. Kersley, B., Alpin, C., Forth, J., Bryson, A., Bewley, H., Gix, G. and Oxenbridge, S. (2006). Inside the Workplace: Findings from the 2004 Workplace Employment Relations Survey (WERS 2004). London: Routledge. Kessler, B., and Purcell, J. (2003). Individualism and collectivism in industrial relations in Edwards, P. (2003)(ed.). Industrial Relations: Theory Practice in Britain. 2nd edit., Oxford:Blackwell. Marchington, M. and Wilkinson, A. (2008). Human Resource Management at Work. 4th edit., CIPD Munro, A. and Rainbird, H. (2004). Opening doors as well as banging on tables: an assessment of UNISON/employer partnership on learning in the UK public sector. Industrial Relations Journal, 35(5), 419-433. Salamon, M. (2000). Industrial Relations, 4th edit., London: FT Prentice Hall.

Case Study: Poliomyelitis and Nursing

Jeffrey Alba is the eldest son of Jesse and Martha Alba. At twenty-four years of age, he is suffering from a permanent disability. Jeffrey has a poliomyelitis, otherwise known as polio since when he was born. Specifically, he is suffering from spinal polio, a disease that shows no symptoms 90% of the time at its early stages (Fagg, 1990, p. 21) His left leg has completely suffered from muscle atrophy for the past two decades, one of the evidences to the finding that the muscles in the left leg has been receiving little nourishment and exercise due to viral invasion in the spinal column (Beale & Horaud, 2001, p.841).Standing at approximately six feet and weighing at about 75 kilograms, Jeffrey can barely walk without his crutches, and a short-distance walk along the streets of the neighborhood proves to be a tiresome and painful experience for him. The Alba family is composed of four members—parents and two siblings. Jeffrey’s sibling is Jennifer, a young girl of sixteen years. The Alba family resides in the suburban area of Detroit, Michigan and has lived there for the length of their lives. The family’s income is a little below the poverty line, living at about $20,000 annually.The family lives in a rented apartment after their first house was sold in 1990 due to financial difficulties. Client’s Needs Based on the physical configuration of the household’s place, Jeffrey needs the space for him to be able to walk with less hindrance in his path. The fact that Jeffrey walks with the help of his crutches calls for an immediate allocation of sufficient space along the narrow room where the family lives. Unnecessary tables and chairs situated across the living room should be removed or relocated elsewhere where Jeffrey rarely goes.Other furniture pieces such as cabinets that are too high for the client to be reached should be carefully reconfigured so that the client can be able to reach into those areas with minimal help. Since t he rented apartment where the Alba household lives is only a single flat and has no stairs, Jeffrey has no difficulties accessing the other parts of the room except for the fact that there are several tables and chairs that need to be removed from his path. The belongings of Jennifer such as her school bags and books should also be removed from the floor since they can impede the movement of Jeffrey from one place to another.Another observation made is that the rented apartment of the household rests on the fifth floor of the apartment complex. The apartment complex nevertheless has a functional elevator only that there are no emergency power supplies dedicated for powering the elevator during occasional power outages. The apartment complex also has stairs which can be used during emergencies. However, the stairs are steep and prove to be difficult for Jeffrey to use especially when there are other residents using the stairs.Thus, it is advised that Jeffrey should seek the help from his family in using the stairs in times when the elevators are not functioning. More importantly, the underarm crutches that Jeffrey has been using for the past twelve years have not yet been replaced. Although the crutches are still functioning, the metal bars are already partly bent mainly because of the increase in weight in Jeffrey’s body as he grew up through the years. At six feet in height, the underarm crutches used by Jeffrey for the past six years in his life are only appropriate for individuals with a height of five feet and five inches.The shorter length of his underarm crutches can result to back complications since Jeffrey has to stoop in order to adjust to the length of the crutches. Moreover, the physical configuration of his underarm crutches is a bit small compared to his physique. Thus, there is an apparent need for a replacement of the crutches in order to prevent several other complications that may arise from the unsuitable crutches that Jeffrey is usin g. Due to the family’s meager income and budget, Jeffrey has rarely visited a hospital and sought medical advice from a doctor.The last time that the client visited a doctor was when he was still eighteen years of age, barely six years ago. As a result, the family has no update on the current condition of Jeffrey’s polio. From the family pictures taken within the past six years, it can be observed that the left leg of Jeffrey has greatly decreased in size. While the rest of the body of Jeffrey has developed through the years, the muscles of the left leg of the client have continuously shrunk in mass. The need of the client for medical advice is of utmost importance so that further medical problems can be looked into and averted.Budget for the Changes and Evaluation Most of the proposed changes in the Alba household do not require a significant amount of financial funding. The proposed changes in the setting of the apartment room can be done almost immediately and very minimal help from paid professionals. The parents can transfer the tables and chairs inappropriately situated in the living room into the bedrooms. Meanwhile the school belongings of Jennifer such as bags, books and notebooks scattered in the different parts of the floor can be transferred into the empty cabinets.The family can easily provide assistance to Jeffrey when he is using the emergency stairs given the fact that the family is oftentimes idle for several hours during the day. Moreover, the parents can request for the construction of a specialized platform just outside the main entrance to the building from the apartment manager or caretaker. The platform will serve as a safety entrance built especially not only for Jeffrey but also for the rest of the other residents of the apartment complex with permanent disability.The family can also request from the building manager several signs just before the elevator entrance such as signs which inform the public to give sufficient s pace to or prioritize the permanently disabled residents. This proposed change is also relatively free of charge as far as the Alba household is concerned. There are a few things, however, which need financing on the part of the Alba household in addressing the health condition of Jeffrey. For one, the provision of a new pair of crutches for Jeffrey requires payments ranging from $50 to $100.Nevertheless, the family can contact several non-government organizations which provide new crutches to deserving individuals either free of charge or at a lesser purchase price. The family can also send personal letters to government officials requesting for a new pair of crutches that are not only sturdy and can last a lifetime but are also suitable to the physique, height and weight of Jeffrey. Given the need for medical advice from a medical practitioner, the family can decide to bring Jeffrey to a healthcare facility that is funded by non-profit organizations.If possible, however, the famil y can also resort to medical advice from doctors in private hospitals within Detroit. Medical advice can run to a few hundred dollars, depending on the severity of his spinal poliomyelitis and the equipments which will be used in assessing his condition. As far as the planning, completion and evaluation of the client is concerned with respect to nursing diagnosis, there are little to very minimal expenses which may barely include transportation costs, meal expenses and purchases for documentation purposes.The duration of the execution of the case study will range from two weeks to a full month, depending on the results of medical advice sought by the Alba household for Jeffrey from either the non-profit healthcare organization or private hospital. The complete valuation will be composed of at least three visits a week to the household for two weeks to one month, with one to two hours duration per visit.

Legal Implications of Social Media and the Hiring Process

MBA 610 Final Paper Legal Implications of Social Media and the Hiring Process Tammy Rider October 17, 2012 Social media has become one of the most important tools in business practices. Companies can advertise their services and products for nothing or next to nothing, network with other businesses, generate new business, connect with their customers, and provide a valuable research tool. It has changed the face of business as we know it. With this wonderful innovation comes responsibility. Employers and employees alike must face new rules and laws associated with their social media practices.One such practice that has become important in the business world is the use of social media during the hiring process. Some companies even go so far as to request job applicants for their username and passwords for such sites such as Facebook, MySpace, and Twitter. Where do the rights of employers and the rights of employees fit into this new high tech world? The legal system faces new challeng es every day regarding this relatively young business quandary. Where should the lines of privacy be drawn?How much social media information should an employer be permitted to use during the screening process for hiring a new employee? It has just recently come to the media’s attention that some employers ask their job applicants for their Facebook login information and password. However, the reality is that employers have been using social media to investigate these applicants for years. In 2011, Reppler, a social media monitoring service, conducted a survey of 300 hiring professionals to learn if, when, and how they are using social media to screen job applicants.The study found that 91% of recruiters or hiring managers use social networking sites to screen prospective employees. Out of these recruiters and hiring managers, 69% revealed that they have denied employment to a job applicant due to something they found on an applicant’s social networking site (1). Employ ers, however, should take caution when using the information they find to make a decision whether to hire an applicant or throw their application in the trash.It would seem that technology is outpacing the law in this area; however, employers should very seriously review the information they find and be sure that it does not lead to a liability under the Fair Credit Reporting Act, or some other state or federal employment discrimination laws. The Fair Credit Reporting Act (FCRA) states that an employer must provide a disclosure that a consumer report or background check will be performed to their job applicants, and should obtain signed authorization by the applicant to proceed with this research.It is also the duty of the company to provide notice to the job applicant that they will take adverse action to not hire them before the company actually takes that action, and provide a post-adverse action notice (2). It is interesting to note that these FCRA requirements do not apply to e mployers who perform their own background checks without using a consumer-reporting agency to obtain the information. Human resources hiring managers that perform a social media search on a job applicant are not bound to these FCRA regulations to provide disclosure and gain consent from the applicant.This is where it gets tricky! Although a hiring manager may not have to adhere to the FCRA regulations, they may still be confronted with other state and federal laws regarding employment discrimination and privacy. In the past, employers have been very careful to not invade employee privacy, base any employment decisions on protected characteristics, or ask unlawful questions during the interview process. In the past few years though, employers have been using social media to screen applicants on a regular basis, whether formally or informally.By performing these pre-employment research screenings on job applicants using social media profiles, employers are setting themselves up to dis crimination claims under federal, state, and local laws. Since this area is still fuzzy and grey as far as the law is concerned, employers need to stay informed and educated to protect themselves from potential lawsuits. Consulting with an attorney who specializes in this field would be a wise decision. As the laws evolve, so must the employer’s behaviors.By reviewing social networking profiles and information, employers are learning about job applicants’ religious beliefs, marital status, family relationships, race, ethnicity, medical conditions, and other information that cannot be used to make an employment-based decision. This is information that is considered as protected characteristics even though an applicant or employee has made it public on a social media profile. As a result, employers must take care when performing such research.Ultimately, should a discrimination claim arise, the employer will have the burden of proof to demonstrate that the decision to re ject a job applicant was based on a legitimate non-discriminatory reason, rather than the fact that the employer learned of the job applicant’s sexual orientation, the projected due date of the job applicant’s baby, or any other protected characteristic. So the question that persists is how can we make use of social media without disrupting any discrimination laws?Some of the job-related information found in a profile may be highly valuable in determining an applicant’s qualifications for the job. One practical method is to only allow someone who is not involved in the hiring of the specific position to be the person who conducts the social media background check. Then, when the social media background check is completed, that person can summarize the job-related information that may be helpful in considering the applicant, and can make no mention of the â€Å"protected† information (race, religion, medical condition, etc. that would otherwise get the emp loyer into trouble. This way, the hiring manager, or ultimate decision-maker, receives only the job-related information, and can demonstrate that the information unknown to him or her had nothing to do with the decision to hire another candidate. Furthermore, before the job opening is even posted, employers should be clear about what they are really looking for in a social media background check, and whether it is necessary for the particular position.For example, the importance and extent of a social media background may depend on the position the company needs to fill (for example, a CFO position versus a seasonal stockroom employee). Certainly, employers should be doing enough pre-hiring due diligence to avoid potential claims of negligent hiring, but they must balance those concerns with finding out information that exposes them to liability for discrimination. There exists yet another level of privacy invasion that some businesses have been practicing. Asking for a job applican t’s login and password information goes beyond simply surfing the web for research purposes.Some hiring managers get around this request by having the job candidate log into their Facebook account, for instance, during an in-person interview. These potential candidates are put into a compromising position. Should they refuse this request or just do it to keep them in the running for the job? Do these employer requests violate the federal Stored Communications Act or the Computer Fraud and Abuse Act? The laws surrounding the Stored Communications Act prohibit intentional access to electronic information without authorization or intentionally exceeding that authorization, 18 U.S. C.  § 2701. The Computer Fraud and Abuse Act prohibits intentional access to a computer to obtain information without authorization, 18 U. S. C.  § 1030(a) (2) (C). Are these laws being violated when companies request login information from job applicants? It would certainly be a violation if the c ompany broke into an account to access the information without authorization. The Equal Employment Opportunity Commission will have to determine whether employers who request this login information are violating anti-discrimination statutes.State legislators are beginning to introduce legislation that aims to prohibit this practice. In April 2012, Maryland was first to introduce a bill to ban employers from demanding Facebook or other social networking login information and passwords. Other states have followed or are currently following suit with bills of their own. For instance, California introduced the â€Å"Social Media Privacy Act† to legislature which would protect the social media privacy rights of students and employees (3).The law is attempting to catch up with technology, beginning with the states and expanding federally in the future. It is in this writer’s opinion that employers should consider the non-legal ramifications of this social media dilemma in ad dition to the legal implications. By demanding this private information they are setting themselves up to lose some of their best employees or potential employees simply because they believe in their rights to privacy and refuse to give access to their social media credentials.Employers should weigh what is most important to them and evaluate what they stand to lose. Employee morale may suffer and an environment of distrust may take precedence. These conditions are not conducive to a healthy workplace resulting in poor performance and poor productivity. Is this really worth the tiny bit of extra information that may be revealed by invading a person’s social media profile? Businesses must stay on top of developing legislation to protect themselves. Job seekers should also remain educated on their rights.It is sad to think that a person may find themselves wanted a job so badly they would be willing to hand over any information that is requested of them. We will probably see th e emergence of a new department in most companies. This department will be responsible for technology privacy education and enforcement which could save the business millions of dollars in lawsuits. The future of technology isn’t slowing down one bit. The law may never catch up, but it will keep pushing forward to protect the rights of employers and employees. Social media is just that: social.What a person does outside of the workplace is, in most cases, of no concern to the business. As they say, don’t mix business with your personal life and vice versa. If we allow that to happen, where will the line be drawn? The line must be drawn now. Works Cited (1) Swallow, Erica, â€Å"How Recruiters Use Social Networks to Screen Candidates†, October 23, 2011, http://mashable. com/2011/10/23/how-recruiters-use-social-networks-to-screen-candidates-infographic. (2) http://www. ftc. gov/os/statutes/031224fcra. pdf (3) http://epic. org/privacy/workplace/

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