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?

social-media-management-1

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

 

 

 

Advertisements

Can Your Boss Determine What You Can and Cannot Post?

With laptops, tablets and smart phones at our fingertips, the presence of social media in our lives is ever growing. In a previous post (http://goo.gl/d7eC9e), I discussed what employers could and could not access in regards to their employees’ social media posts. Keeping our clients up to date on such policies helps them to avoid costly legal issues.

Do your Employee Social Media Policies Violate the National Labor Relations Act?

Accessing employee social media posts and information is not the only issue at hand, when it comes to social media. As demonstrated by two recent court cases, UPMC, et al v. SEIU Healthcare Pennsylvania and  World Color Corp. v. Graphic Communications Conference of the Internal Brotherhood of Teamsters, there are other potential legal issues restricting what employees can and cannot do through internet communication. Furthermore, disciplining employees for social media use may also open the door to civil litigation.

The National Labor Relations Board is currently examining social media policies of many businesses. The NLRB is enforcing the right of both unionized and non-unionized employees to “engage in concerted activities for the purpose of . . . mutual aid or protection.” In doing so, the NLRB hopes to deter employers from scaring employees out of excising their rights.

Be Clear, Be precise and Give examples.

While examining such policies the NLRB looks for ambiguous or overly broad employer rules and policy language.  Such rules and policies are in violation of the National Labor Relations Act. In the first case mentioned above, an NLRB Administrative Law Judge reviewed an employer’s electronic mail and messaging policy. It was written in the policy that employees were “prohibited from using the company’s electronic technology in a way that is ‘disruptive, offensive to others, or harmful to morale’ or ‘to solicit employees to support any group or organization, unless sanctioned by management.” Such terms as “disruptive”, “offensive to others” and “harmful to morale” were deemed as ambiguous due to the lack of examples within the policy. Employees would not be able to determine what constituted disruptive, offensive, and harmful social media action. Thus, the policy was in violation of the NLRA.

In the second case, an employee who was terminated, sued his employer for having violated his NLRA rights. He alleged that he had been reassigned within the workforce because of his social media postings. Despite his testimony being the only form of evidence for the allegation, the judge declared that the employee had been punished, in this case reassigned, due to his social media posts and therefore his NLRA rights had been violated.

Employer Guidelines:

While both cases have been appealed, avoiding such situations to begin with is the ultimate employer option. Keep in mind the following tips when forming your business’ social media policies. Following these tips may be the difference between  a healthy business and a business related lawsuit.

  • When forming social media policies, avoid ambiguous terms. Provide examples of what is expected from employees in regards to social media as well as examples of what types of posts are not allowed. Leave nothing to interpretation. This will demonstrate the employer’s desire to protect his or her business rather than suggest an impermissible desire to restrict employee rights.
  • Provide proper employee training based on your social media policy. This will give employees a clear picture of what is expected of them.
  • Finally, always consider whether an employee’s social media activity is protected under the NLRA before taking disciplinary action.

Your Social Media posts may be used against you.

A recent collection of new cases makes clear that Court’s are becoming more and more inclined and willing to allow discovery of and admission of evidence of a parties’ social media posts, pictures and content. When you post on-line, are you considering the fact that the posts may be shown later to a Court or Jury??

In a sexual harassment case, [E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., 2012 WL 5430974 (D. Colo. Nov. 7, 2012)] the defendant moved the court to compel production of information contained on the social media accounts of many female class members. To show that the information sought was likely to be relevant, the defendants pointed to several publicly-available Facebook posts. For example, one plaintiff’s Facebook posts contained information about her emotional state, her financial expectations in this lawsuit, her post-termination employment, and her outlook on life post-termination. Viewing each of these categories as “potentially relevant” to the case, the court stated that “if the information was contained on pages filed in the ‘Everything About Me’ folder, it would need to be produced.” Addressing whether the result should be different because the information is on Facebook, the court reasoned that willingly choosing to store and share information on Facebook presents “an even stronger case for production, at least as it concerns any privacy objection.”

In another case a court Found that Facebook pictures of plaintiff skiing were relevant to her claim of damages and allowed further discovery. In Richards v. Hertz Corp., 2012 WL 5503841 (N.Y. App. Div. 2d Dept. Nov. 14, 2012), a personal injury suit arising out of an automobile accident, the defendant sought all “status reports, e-mails, photographs, and videos” posted on the private portions of the plaintiff’s Facebook page. The defendants alleged that production was warranted because one of the plaintiffs posted to Facebook pictures of herself skiing, which were directly relevant to the plaintiff’s testimony that the accident impaired her ability to play sports and “caused her to suffer pain that was exacerbated in cold weather.” The court found that the defendants met their burden, showing that the public images and other portions of the plaintiff’s Facebook profile were “reasonably calculated to lead to the discovery of information bearing on” the plaintiff’s claim.

And in Pennsylvania an Employer was found not to have violated certain Federal law when it took control of a former employee’s LinkedIn account under company policy. In Eagle v. Moran et al., Civil Action No. 11-4303 (E.D.Pa. Oct. 4, 2012), the plaintiff attempted to establish violations of the Federal Computer Fraud and Abuse Act (“CFAA”) and the Federal Lanham Act against her employer because after the plaintiff was involuntarily terminated from her position as CEO with her former employer, the employer used her password to change her LinkedIn profile to that of the new CEO as well as the password associated with the account. When individuals searched for the plaintiff, it resulted in the display of the incoming CEO’s name, photograph, and new position. It is important to note that the employer followed internal policies of asserting ownership over former employees’ accounts, and, while the employer did use information and incoming traffic from former employee accounts, it took steps to avoid identity theft. Additionally, when the plaintiff set up her LinkedIn account, she gave another employee her password according to internal policies. Under the CFAA, the court ruled that the plaintiff failed to establish a claim as a matter of law because loss of business opportunities is not enough to meet the required showing of actual loss (usually proven by showing damage to a computer). Under the Lanham Act, the plaintiff is required to show that the defendant created a “likelihood of confusion” from using a “mark” owned by the plaintiff. The court disposed of the claim on the “likelihood of confusion” prong because any confusion that occurred was not about the plaintiff’s “’affiliation, connection or association”’ with the new CEO or employer—at most it created a mere diversion. The Federal Law claims were dismissed, though the court did not rule on several state causes of action set for trial.

Employers and employee need to carefully consider their use and relationship to both social media content and social media accounts. Have a policy and clear understanding about both and get the advice of your legal counsel to help navigate this rapidly developing area of law.