Article from the ESR Newsletter and Legal Update
No discussion on recruiting these days is complete without an analysis of how the Internet is used for sourcing candidates. From social networking sites such as MySpace or Facebook, to blogs, Twittering, online videos, and business connection sites such as LinkedIn or Plaxo, recruiters have become focused with laser-like intensity on how to make use of these sites.
What is sometimes overlooked in the rush to use the Internet to recruit is the one question that needs to be asked first: What are the legal risks in using the Internet for recruiting, and how do we manage those risks?
First, allegations of discrimination is one critical area where employers and recruiters can find themselves in hot water when utilizing social networking sites such as MySpace and Facebook (sometime shortened to "MyBook"). Recruiters may be accused of disregarding candidates who are members of protected classes by passing over the online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religious affiliation, marital status, or medical condition. All of those are things that may be revealed by a Facebook or MySpace search. There may even be photos showing a physical condition that is protected by the Americans with Disabilities Act (ADA) or showing someone wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as "Too Much Information" or TMI.
The problem is that once a recruiter is aware that an individual is a member of a protected group, it is difficult to claim that the recruiter can "un-ring the bell" and forget he or she ever saw it. It could be argued that if a passive candidate is passed over because of discriminatory criteria revealed on a social network site, they can be harmed, since they did not even know they were disregarded and are none the wiser. The problem with that approach is three-fold. First, discrimination and civil rights laws would likely still apply, even in recruiting passive candidates. Secondly, there are few secrets in the world. If a firm is using discriminatory criteria, a member of the recruiting team who feels uncomfortable about such a practice may well say something - either publicly on the web, or within the organization. Third, it can be argued that discriminatory criteria were being used if it turns out that the entire workforce happens to be homogeneous and does not include members of protected classes.
Of course, the analysis is complicated by the fact that the aggrieved individual may have placed the information on the web themselves. However, it would be challenging to suggest that a person somehow consented to discrimination by placing material on the web that was then used illegally by recruiters. Until courts rule on these issues, employers can only try to apply established legal concepts to their online recruiting efforts.
The issue for employers and recruiters is how to protect themselves from allegations of discrimination if no further action is taken after the recruiter discovers on the Internet that a person is a member of a protected class. For employers that want to use social network sites to screen a current candidate, the safest path for the use of social network sites is to obtain consent, and only search once there has been a conditional job offer. This helps ensure that impermissible information is not considered before the employer evaluates an applicant using permissible tools, such as interviews, job-related employment tests, references from supervisors, and a background check. At that point, the reason for searching social networking sites would be to ensure that there is nothing that would eliminate the person for employment, such as saying nasty things about your firm, or if the applicant engaged in behavior that would damage the company, hurt business interests, or be inconsistent with business needs.
For sourcers and recruiters who are looking for passive candidates, however, that approach does not apply. By definition, the recruiter does not have consent, since sourcing is at the start of the hiring process. Employers and recruiters in the sourcing stage may want to consider some of the following:
1. Ensure each position has a detailed job description written for that specific position that clearly lays out the essential functions of the job and the knowledge, skills and abilities (KSA) required for the position.
2. Have a clear internal policy that internet sourcing is NOT being used in violation of federal and state discrimination laws and that only factors that are a valid predictor of job performance will be considered, taking into account the job description and the KSA require for the job.
3. Have documented training on legal recruiting techniques. The training should include clear information on what would constitute a discriminatory practice.
4. Have a clear procedure that outlines key words, criteria, and methodology for sourcing, so recruiters can demonstrate that they are searching for objective requirements to be considered as part of the pool. Even better is if the criteria being used can be measured or have a metric attached.
5. If someone meets the objective requirements but is not placed in the pool of potential candidates for other reasons, a recruiter may want to note why the exception is being made. For example, if the social networking website demonstrated behavior inconsistent with business interests, that should be noted.
Another issue is whether the websites utilized are authentic. Social network sites need to be taken with a grain of salt. Employers need to be careful that the site they are looking at actually refers to the applicant. Many Americans have "online computer twins" - people with similar names. Another problem is "cyber slamming," online smearing usually done anonymously, such as derogatory comments on websites or even setting up a fake website that does not truly belong to your applicant. Yet another issue is whether the statements made are even true and credible, keeping in mind that the idea behind these sites is "friends talking to friends," and users of these sites have been known to embellish.
A problem yet to be fully explored by the courts is privacy. Contrary to popular opinion everything online is not necessarily fair game. Certainly if a person has not adjusted the privacy setting so that his or her social network site is easily available from an Internet search, that person may have a more difficult time arguing that there is a reasonable expectation of privacy. However, the terms of use for many social network sites prohibit commercial use and many users literally believe that their social network site is exactly that - a place to freely socialize. The argument would be that in their circles, it is the community norm, and a generally accepted attitude, that MySpace or Facebook pages are off limits to unwelcome intruders, even if the door is left wide open.
Until the courts sort this out, one thing does seem fairly certain - if an employer uses subterfuge to gain access, such as by creating a fake online identity just to penetrate a social network site, then the privacy line has probably been crossed. Of course, if using a screening firm to search the Internet, the federal Fair Credit Reporting Act (FCRA) would apply.
The bottom line as always when using the Internet for employment related matters: Proceed With Caution. There has yet to be clear law or court cases that set forth how to proceed in this area. In the meantime, employers and recruiters may want to approach the Internet with some caution before assuming that everything is fair game in the pursuit of passive candidates.
For more information on due diligence in hiring, contact Jared Callahan at ESR at 415-898-0044 or jcallahan@ESRcheck.com
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