Are you using social media during the hiring process? Here’s what to watch out for.

The Statistics:

When speaking with our clients we find that the majority turn to social media when going through the hiring process. 43% of employers say social recruiting has led to higher quality candidates, leading them to believe hiring through social media is the way to go in the future. While social media can act as a great supplement to hiring, it can also act as a slippery slope to civil lawsuits if it is the only method used during the hiring process. A 2012 Social Recruiting survey and 2015 Recruiter Nation survey, both from Jobvite, indicate that 96% of employers use or anticipate using social media as a screening of future employees. Approximately 47% of employers turn to Twitter, 55% use Facebook, and an overwhelming 87% turn to LinkedIn for quick background information on potential employees. In fact, 56% of recruiters find candidates from social media sites and 73% of employers have successfully hired a candidate through social networks. However, how much information is too much information?

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Why using social media in the hiring process is tricky business:

There are certain “potential employee” aspects which the law would rather an employer not know before conducting interviews. Specifics include, race, gender, religion, disabilities and sexual orientation. When going through personal social media sites, such information is often easy to find and view. Using this information at any time during the hiring process would violate many anti-discrimination laws. These laws include:

  • Title VII of the Civil Rights Act of 1964 (Title VII). This prohibits employment discrimination based on race, color, religion, sex, or national origin;
  • The Age Discrimination in Employment Act of 1967 (ADEA). This protects individuals who are 40 years of age or older; and
  • Title I and Title V of the Americans with Disabilities Act of 1990 (ADA). This prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.

Here enters the tricky part. Even if an employer does not base his or her decision of hiring a certain individual on the information gained from social media sites, how can the employer prove this? If the individual who was turned down for the job learns that his or her social media site was viewed, he might claim that it was for this reason that he was not hired for the open job position. This claim will inevitably lead to a discrimination lawsuit.

How can hiring employers avoid discrimination lawsuits?

For starters, it is always best to wait until after an interview has taken place to look up a potential employee on social media sites. Even this however does not fully protect employers. So what does?

  • Using an outside screening company which might gather information from social media sites, or using an existing employee to gather social media information is acceptable, so long as the employee is not involved in the hiring process.
  • Only gather information pertaining to education, or experience. Do not gather or utilize any information which is protected under anti-discrimination laws.
  • Include an acknowledgement statement on job applications which allows the employer to access the potential employee’s social media site, for business purposes only.
  • Incorporate a social media process within company policy, explaining the do’s and don’ts of using social media during screening processes and be sure to indicate such a process is used only when determining applicants job qualifications and experience. Also be sure that existing employees are well trained on this matter according to the policy.
  • Always keep copies and records of what information and which sites were used during hiring so that it can be proved that only valid information, which does not violate anti-discrimination laws, were used during the hiring process.

By following these steps, you can help protect yourself and your business from unwanted discrimination lawsuits. The information on Social Media sites has grown at tremendous rates over the last ten years, and can be very tempting during the hiring process, but learning how to filter and organize such information can mean a lot of time and money saved both for you and your business.

Data referenced:

  1. 2012 Social Recruiting Survey
  2. 2015 Recruiter Nation Survey

 

 

 

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Employment Arbitration Clauses Limiting Discovery are Allowed

I draft a lot of employment agreement for clients and always recommend some kind of ADR (Alternative Dispute Resolution) provision or separate agreement.  An Arbitration arrangement, for example, is many times preferable to public trial to resolve employment related disputes because it is faster, less expensive and more private than the public trial alternative. But drafting these ADR agreements or clauses can be tricky and we have many cases on the books that have stricken some or all of such provisions as invalid or illegal.

In a recent case from the Second District in California, the Court of Appeal has clarified the extent to which some of the details of these arrangments are deemed permissible,.

In Sanchez v. CarMax Auto Superstores California, LLC – the Court found that an arbitration agreement was not rendered substantively unconscionable by limitations on discovery, where the limitations were applicable to both parties, and employee failed to show that the limitations would prevent him from obtaining necessary evidence.  Additional provisions in the agreement requiring a written award, and that the proceedings remain confidential, and prohibiting consolidation of claims of different employees were all held not to be unconscionable – which means they were allowed.

Properly crafted ADR agreements in employment relationships can save both sides time and expenses if a dispute arises either during or after the employment.

Public Disclosure of Private Facts:

Public Disclosure of Private Facts: California Court of Appeal Holds that Spoken Words Can Support a Privacy Based Tort Claim.

An employee’s right to protect his or her personal information has become strengthened by a recent California Appeal Court case. In Ingat v. Yum! Brands, Inc., the California Court of Appeal (March 18th, 2013, Case No. G046343) has held that the privacy-based tort of public disclosure of private facts does not have to be predicated on the disclosure being in written form; an oral disclosure is sufficient to support the claim.

In the case, an employee alleged damage based on her employer’s verbal disclosure of a bi-polar disorder. The case was dismissed because the disclosure was not in writing. The dismissal was overturned.

The Court noted that the requirement that disclosures must be written to support the claim of Public Disclosure of Private Facts stems back to the 1931 case of Melvin v. Reid, and then observed that “the concentration on written publications in cases cited in Melvin appears to be simply an accident of the kinds of privacy violations prevalent at the time,” and not based on any fundamental policy that required the disclosure must be in writing. With the advent of subsequent new technologies such as television, radio, visual broadcasts via the internet, etc., disclosures can easily take not written form and the California Court of Appeal felt that any notion that the disclosure had to be written to support a claim no longer applies.

The Court stated: “[w]e conclude that limiting liability for public disclosure of private facts to those recorded in writing is contrary to the tort’s purpose, which has been since its inception to allow a person to control the kind of information about himself available to the public-in essence, to define his public persona.”

Clients who are employers now need to be specially aware that in the course of their ongoing diligence insuring the privacy of employee information, a risk of verbal disclosure must not be considered and managed.

http://ow.ly/jPzLc

Lawsuit seeks overtime pay for reading emails after work!

A judge in Chicago has decided to allow a lawsuit to proceed in which a Chicago Police Officer wants overtime for himself and his fellow officers for taking calls or scanning emails on their smart phones while off duty.  Absent from the suit is any offer to credit the City back for time on duty spent reading Facebook, Twitter or exchanging private text messages on the same smart phones.

You can read about it here, including a link to the actual court decision.

Suit: Answering calls, scanning emails deserves OT – SFGate http://ow.ly/hHgxh