Social Media + Legal Reality & Perspective = Caution for Recruiters

As search professionals and recruiters, we are learning more about the benefits of leveraging social media and integrating it as a trusted recruiting tool in identifying talent for our clients. It should be a critical component to sourcing combined with other proven methods. After all, our clients and candidates use it and so should we. I see social networking becoming more of a key component to recruiting as we can reach out to more people using social networks. It is also critical that we understand the powerful opportunity it presents for corporations to engage in real-time dialogue with customers, stakeholders, and candidates, and use it similarly with our clients as well.

Using social networks can give us a competitive edge in identifying and engaging the best candidates available, however, these sourcing options also bring potential legal pitfalls that we need to be aware of. For example, what happens when a candidate has revealed protected information via their social profiles? We see it and cannot ignore it. Individuals have created Facebook profiles that can answer the list of illegal questions, including race, religion, sexual orientation, and relationship status for example. You can also learn about a candidate’s leisure activities or interests, which can promote a discriminatory judgement if it doesn’t agree with you or your clients’ culture. With 75+ million users, LinkedIn has become an excellent online forum for employment opportunities. Corporate and third-party recruiters in particular use LinkedIn as an inexpensive and effective method of sourcing passive candidates, as well as professional networking and developing new client business. For me, LinkedIn represents a slightly safer choice to locate candidates and get an initial professional profile, in addition to providing a business development tool.

Can personal and professional be separated in social media?

It is also evident that social media can also become an employment compliance issue as the “protected information” on people’s profiles is accessible, voluntary, and free. So it is important to be on top of this as our clients are also using these tools to screen and check out candidates after they are presented. Until applicants and employees note the importance of keeping these worlds separate, we are in a precarious position of using the information on social networks selectively and with caution. It is incumbent on us to recognize what is and what isn’t job related, as well as the inherent faults of information generated by the applicant or other parties.

I have managed recruiting projects and learned information that is not job related that could work against the candidate. For example, I worked with a smaller company that was hiring a professional for a newly created position. The owner of the company interviewed a slate of candidates. One candidate interviewed with several people in the company, and the owner almost offered her the job during the first round. I discovered she was three months pregnant from her Facebook status. The owner also conducted a social media check and found out as well. The owner was automatically thinking that in six months this prospective hire will be giving birth and during one of their busiest seasons. From a legal perspective, the owner cannot act on this information. So the question is how you factor this into your decision-making process once you know this information and technically “unlearn this”. I would imagine that logically you can state you didn’t factor this in your decision making process, however, if you are sued for discrimination you have to prove that it wasn’t part of the decision-making process. Now you’re in a risky area with a larger liability.

What happens when someone else posts potentially harmful information about an individual?

When you search someone’s name or visit their social networking page, you might also read potentially false and/or damaging information about them as well. But how do you UNLEARN that the person is pregnant for example, or any other information that you cannot legally ask, or was written maliciously? If your client does not hire the person, the burden is to prove that the information revealed through online search did not affect the employment decision. If such candidates are subsequently eliminated from consideration, some of them may conclude it was because of the protected information and may take legal action, especially if it is a known fact that you found them on-line. In other words, the mere appearance of discrimina­tion can create problems. It is always difficult to prove a negative and a lot of time might be spent responding to the complainant.

If a business can demonstrate that a hiring decision was based on objective, relevant job criteria then chances are there won’t be a case. But if the selection criterion involves softer skills such as “good communications skills required” and the candidate is ruled out, it is very difficult for a business to prove that discrimination wasn’t involved. The amount of time and money required to deal with any lawsuit can be considerable.

One obvious way to protect yourself when using social media is to separate the information gathering and recognize what is and what isn’t “job related or relevant”. Companies use  us to gather that information in addition to inherent faults generated by an applicant. Since we are the ones searching sites to identify or screen candidates viewing the information related to the candidate’s protected class status, it is a good practice to have specific written instructions in a your contract or agreement with the client stating that we will only search for job-related information and will adhere to all anti-discrimination regulations when sourcing any given position.

According to Jobvite’s 2010 Social Recruiting Survey, employers are increasingly using LinkedIn, Facebook and Twitter to find and vet prospective employees:

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  • 73% of respondents currently use online social networks or social media sites to support their recruiting efforts.
  • 92% of respondents hiring in 2010 currently use or plan to recruit via social networks.
  • 78% of respondents use LinkedIn for recruiting; 55% use Facebook (up 15% since over 2009); and 45% use Twitter (up 32% over 2009).
  • One-third of respondents always check out candidates’ social media profiles when vetting them.
  • 58% of respondents have successfully hired candidates through social networking websites.

The Jobvite survey also noted that some employers are shifting their recruiting activity away from traditional channels, such as job boards and third-party recruiters and search firms, as they deepen their engagement with social recruiting. Jobvite found 38% will spend less on third-party recruiters and search firms as the recovery continues.

Benefits outweigh the risks.

As a recruiter, I will continue using social media is an appropriate and reasonable approach to identifying talent, however, it is important to do it in an acceptable way combined with other methods as well. You still need to vet candidates as before. We must conduct online search for legitimate job related business reasons. Information contained on social networking sites tends to differ from that found on resumes and may not even be true. Consequently, we and clients may gain information regarding protected categories that would not otherwise be obtained through traditional hiring methods. We can debrief with our clients regarding the candidates’ business experience and value they bring to the position and not share any “protected information”. Companies also need to ensure that corporate hiring managers and other decision makers involved in the hiring process do not conduct online searches of the candidates they are interviewing.

According to a Summary Report by Taleo called Social Networking Recruiting, Managing Compliance Issues, there are no specific laws or guidelines from the EEOC or OFCCP covering the use social networks. However, a combination of common sense and reference to existing OFCCP guidelines will enable us and corporate recruiters to maximize and enjoy the numerous benefits of social networking sites while reducing the risk to a minimum.

Social networks are here to stay, and there is little doubt in my mind that they will become even more central to the hiring process with privacy issues for sites taking on more importance. These sites are a resource that we should continue to pursue. We also need to use common sense, maintain discipline, and consider implementing appropriate record-keeping practices to avoid legal complications.

Toby is a seasoned talent acquisition consultant, entrepreneur, coach and speaker, and has worked with clients in a variety of industries and functional areas. She possesses over fourteen years of retained executive search experience and worked at Whitney Group (Carlyle Group, Ltd.), A.T. Kearney Executive Search, Kensington International and Wujcik & Associates. She is also an AIRS Certified Internet and Social Sourcing Recruiter. Prior to executive search, Toby spent fourteen years in the health care industry and served as a senior human resources manager with a special emphasis on recruitment, compensation, and benefits.

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