Social Media Recruiting: TMI (Part I)

How Recruiters Can Prevent Social Media Lawsuits (Part I)

According to a 2011 Society for Human Resource Management Survey on the topic of recruiting online only 18% of the companies surveyed use Social Networking sites to recruit talent. According to the Survey, “It appears that only a small number of organizations are using online search engines and social networking websites to screen job candidates. The primary reasons for not using these methods are the legal risks, the lack of verifiable data and the lack of the job-relatedness of much of the information found online.”

Although there are true benefits to recruiting online, namely access to a wider diverse talent database, efficiency in the computerized process of screening qualified candidates, reduced time-to-hire in a 24/7 search method and reduced recruiting costs, just to name a few, the “fear” of lawsuits is still holding companies back from using Social Media to assist them in recruitment. Why do employers think that Social Media is “riskier” than traditional recruitment methods? Because Social Media is “transparent” with information – or should I say, “TMI” (Too Much Information.) That is, the information that recruiters have long been trained to “avoid” such as not asking an employee how long he’s been married, or what church his family visits on Sundays, in order to avoid a claim of discrimination, is transparently glaring at the recruiter via the employee’s Social Networking profile.

The most obvious difference between recruiting talent online using Social Media sites, such as LinkedIn, and recruiting offline, using traditional means, such as newspaper advertisements for example, is the profile picture of the potential candidate that often accompanies their online site resumes. Why is the “picture” of a candidate or their “user profile” such a problem for recruiters now? Because the picture of your potential hire is worth a thousand words.

What is visible from a LinkedIn profile picture that gets a recruiter into legal trouble? From a single profile photograph, a recruiter can guess a candidate’s gender, national origin, age, race, color and ancestry, among other things. From a user profile, a recruiter can guess about marital status and sexual orientation. From Facebook Wall postings or other blog postings, a recruiter can guess religion, medical condition or disability, or even genetic information. In doing so, a recruiter is open to allegations that hiring decisions are based on “protected categories” that federal and some state laws, such as California, prohibit as categories that can be considered in making a hiring decision, including the recruitment process. Collectively, these anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Equal Pay Act of 1963, the Rehabilitation Act of 1973, and the Genetic Information Nondisclosure Act of 2008, among others federal statutes as well as state statutes, including California's Fair Housing & Employment Act, and local ordinances, prohibit recruiters on behalf of the their employers from intentionally discriminating in the recruitment and hiring process.

For example, your company wants to recruit talent for an open Customer Service position and you have identified a hot-shot that seems perfectly qualified for the role. The hot-shot interviews throughout the company and seems a good fit until one manager informs you that she isn’t a “culture fit” because her LinkedIn profile shows she is a member of the Muslim Business Network group. Using this information as the basis for any employment decision, including the decision not to hire or recruit can get you and your company in legal hot water and violates the anti-discrimination statutes which prohibit discrimination on the basis of religion.

As a fun exercise, check out your own LinkedIn or Facebook profile and see how many protected categories you can infer. Someone recruiting me can identify from my LinkedIn profile and my linked blog entries information about my gender, my marital status, my national origin, my religion, my race, my sexual orientation and my age (from my year of graduation, not from my picture, which is ten years old.) What can I say? I haven’t looked that good since.

Moreover, these anti-discrimination statutes also prohibit recruiters from unintentional discrimination in the recruitment process by prohibiting conduct that creates a disparate impact on the workforce and is also not justified by a business necessity. The EEOC uses this example to explain disparate impact in recruitment: “An employer's reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic.” Disparate impact is a problem for recruiters using Social Media because of the transparency about these sites’ user’s demographic. For example, if your company chooses to only recruit talent through Twitter, posting tweets about open positions on your company’s Twitter profile, this can expose your company to a disparate impact claim. Quantcast.com has posted Twitter’s user’s demographics as 67% Caucasian and 3% Asian. An Asian applicant might argue that the recruitment process has a disparate impact on Asian applicants. Without a business justification for this, the company will be hard-pressed to demonstrate otherwise.

Certainly, one might think that the best way for a company to protect itself from a claim of intentional discrimination in the recruitment process is to outsource the recruitment process to a third party that will screen the applicants and eliminate or redact “protected category” information, thereby allowing the company to assert a defense if needed that it was not aware of the protected characteristics throughout the hiring process. This is, in fact, what many companies do. However, these are “best laid plans” because in reality, outsourced recruitment gives rise to additional statutory requirements, namely, compliance with the Fair Credit Reporting Act (FCRA) and its state statutory equivalents.

In June 2011 the Federal Trade Commission (FTC) published a blog article, ‘The Fair Credit Reporting Act & Social Media: What Businesses Should Know,’ which clearly stated that employers who use outsourced “Credit Reporting Agencies (CRAs)” are obligated to comply with FCRA. The FTC said, “Employment background checks can include information from a variety of sources: credit reports, employment and salary history, criminal records–and these days, even social media. But regardless of the type of information in a report you use when making hiring decisions, the rules are the same.” Therefore, the Companies providing reports to employers–and employers using reports–must comply with the Fair Credit Reporting Act.”

Certainly, handing over Social Media screening in recruitment to a third party may seem like the best way out of a discrimination allegation, but in doing so, you may be allowing the third party to substitute their judgment for yours. In a recent online Wall Street Journal article, Kim Harmer, a partner at Harmer Associates, a Chicago based recruiting firm, stated "I look at their Facebook and see how they approach what they put on it. Is it immature? Appropriate or inappropriate? I'm not judging their activity but looking at how they communicate what they do and their thoughts and their judgments to the public as a reflection of what they will do with clients and team members." Although the use of outsourced Social Media recruiting and screening agencies can allow an employer to filter out protected category information, ultimately, the employer is also taking a legal risk by putting their trust in another’s judgment to determine the criteria for screening out applicants and redacting information.

Of course, an obvious solution is to not screen applicant’s Social Media activity at all. Certainly, this is what the 82% of those surveyed by SHRM are thinking. Unfortunately, this also leaves an employer vulnerable legally. An employer who could have easily discovered an applicant was terminated for cyber-bullying his former coworker by simply viewing his public Facebook postings, may be accused of negligent hiring when that employee repeats this behavior after your company hires him.

So, what can employers do to avoid the double-edged sword of online recruitment? First, in order to avoid a claim of intentional discrimination, employers must be able to justify that the recruited employees are being recruited based on objective, measurable job related qualifications and that these are the only qualifications being considered. This is accomplished with a well designed job-description, carefully crafted interview questions that ask about job qualifications, not personal characteristics, and training everyone who interviews the applicant or meets the applicant about legal hiring practices and protected categories. If the employer outsources the Social Media screening process, a carefully designed list of sought-after qualifications should be designed by the employer so as not to “hand over” the process to a third party that may not understand your company’s needs. Finally, the employer must ensure that the third party recruiters are adhering to the credit reporting statutes, both state and federal throughout the process. If the process is not outsourced, it is wise to ask applicants to sign Social Media waivers anyway, thereby notifying them that their Social Media activity is being evaluated in the process.

It is not wise to require your applicants to give you their passwords to access their high privacy setting or “pretend-friend” them to see information you think they are hiding from you. The City of Bozeman, Montana required applicants to supply their username and password information to Social Media sites, but the public outcry against it made them curtail this practice. Whether unlawful or not, your company may run afoul of the Terms of Use of some Social Networking sites that prohibit sharing passwords or the Stored Communications Act by “asking” for passwords, as most employee-applicants will want the job so badly that they will “agree” without truly wanting to give you this information. Notwithstanding, surreptitious means for gaining information is never a good employment practice.

I know what you are thinking. What’s the point? If you tell them you are going to check their Social Media, then they will just clean it up or delete their drunken party twitpics. Now, how will you really know if your potential new-hire has a cocaine addiction or a penchant to bad-mouth his supervisors? But, the legal truth is, if you want to screen your potential employees, legally, without exposing yourself to increased liability, the only way to do it is to tell them you are going to do it, get their permission to do it, and then if something bad pops up, give them a chance to explain it. In the end, it isn’t about “catching” someone in the act of online foolishness, but about making sure that the person you hire is the “right” person for the job, based on the objective, qualifications of the job or based on the company’s stated goals and values.

In order to defeat a claim of disparate impact, the best practice is to diversify the online Social Media sites you use so that one site’s demographic profile does not define your recruitment strategy. Second, use an online aggregator, such as indeed.com or careerbuilder.com, which will aggregate from various Social Media sites. Third, compliment your online recruitment strategy with traditional means, such as paper postings, internal job postings, and college and university recruitment and job fairs. The more diversified your approach, the more diversified the pool of applicants. Thus, defeating a disparate impact claim.

It is a good practice to include offline recruitment as part of your recruiting strategy if for no other reason that some people do not have access to these sites or prefer not to participate in Social Networking or share information on the Internet, including their personal phone numbers, which would be something that one might include on a resume.

Certainly, if your decision to recruit online is based on reducing the costs of recruitment, implementing all of the above strategies will undermine this economic purpose. If that is your motive, than the best advice is to do your homework about the sites you choose to recruit from. Research and learn their user’s demographic. Make an informed decision based on the statistical information available to you. In other words, do not go blindly into the night of recruiting online. Know the publicly available demographic information of the sites you are using for recruitment purposes before they are used against you. Remember, that a business justification can defeat a disparate impact claim. If you need your new-hire to be bilingual in English and Spanish, it may be justifiable that you only posted the job on ihispano.com. Therefore, giving due consideration to the business justification for your open position is worth it. Another good idea is to always post and promote your company’s positions on your own company’s website. This will open the job to the entire web and defeat a claim that you limited the recruitment process based on protected categories. Finally, always include the fact that your company is an “equal opportunity employer” on all job postings. Thereby, encouraging all qualified applicants of any color, gender, religion, or condition to apply for the position.

Part II of this series will focus on Social Media Recruiting
Best Practices for Recruiters