Some of Your Most Vexing Legal Topics

Mar 30, 2012

Today at the ERE Expo in San Diego, Mary Wright, general counsel at Ogletree Deakins, and Michael Nader, also an Ogletree attorney, took a stab at some of recruiters’ top-of-mind legal issues. Here are some of the ones that came up in the open discussion, and some of Wright and Nader’s thoughts.

  • Can a recruiter use Facebook to source candidates? Wright answered this with a “Yes – but.” The but was that she did get into the issue Carol Schultz wrote about regarding Facebook passwords. Passwords are “very private,” and seeking it is “inappropriate,” she said, and a huge request to make of a job candidate. Even “friending” an employee is a significant request, too, she says. “I don’t want to know about your private life,” Wright says. “There’s very little on Facebook that is actually job-related.” She also notes that so much of what’s on Facebook is untrue, or sarcastic, or in some other way misleading to a recruiter or hiring manager, and thus not wise to use in hiring decisions. Wright says some form of legislation in this area may be passed some time within a year. Nader says a company should document how it uses social media in a hiring process, and not do anything shady (like set up a false profile and “friend” someone) to get information.
  • Is LinkedIn different than Facebook? Wright thinks that about 90% of the material on LinkedIn is meant to be public. “It’s just as reliable as a resume,” she says, meaning it may very well be just a marketing document for a person, but at least it’s usually meant for general consumption.
  • Can a recruiter be personally sued for publishing something improper on a job board or job site? Of course, Wright says — anyone can sue for anything. But being liable is another story, and when it comes to that, it depends. If you’re violating a trade secret, writing something hateful, or slandering or something in a job description or other material on a career site or job board, you can be liable because creating this type of content is never within the course and scope of your job. Otherwise, it’s generally unlikely you’d be personally liable for posting on your employer’s website.
  • Do you need to report passive candidate searches to the government? Generally, someone needs to be an applicant to be reported, not merely a part of a pool.
  • That legal jargon on the end of applications — about a candidate being subject to a background check and such — are there any magic words to it? No, Wright says, but applicants should be able to self-select out if they don’t want this information given to an employer. And what you ask of employees must be job-related. If you’re not going to have to drive a truck at work, don’t ask employees to take certain background checks more appropriate for your drivers, just because some other employees have to go through the check.
  • What do you tell somebody who you’re not hiring? “The truth,” Wright says. You can be like most employers and not tell people why they’re not hired, she says, but if you make up a reason, the lie could come back to bite you.
  • Hiring the unemployed — well, not hiring them. Is this a good idea? Nader says to be careful about disparate impact. What if, for example, the unemployed people you are ignoring fit into a certain protected category, like are mainly older? You could accidentally be discriminating against some group of people with a written or unwritten “unemployed not welcome” policy.
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