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Social Media Strategies in Recruiting, Hiring Pose Legal Risks for Employers

Monday, April 21, 2014

By Michael Bologna  

April 7 — Although social media websites have become powerful tools for recruitment and hiring, employers that rely too heavily on these channels to attract and screen talent might expose themselves to significant legal risks, employment attorneys and recruiting specialists told Bloomberg BNA in recent interviews.

Those risks, they said, might manifest as civil rights complaints filed under Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and/or similar state-based anti-discrimination laws.

The complaints might allege that the employer's use of social media channels such as LinkedIn, Twitter or Facebook uncovered protected class information that was used to disqualify an applicant, attorneys and recruiters said. An alternate theory might assert that the employer's social-media-driven recruiting process created barriers that made it harder for members of a protected class to compete for employment.

Although these legal theories have generated little, if any, litigation to date, practitioners said, there's a lag in litigation involving the use of new technologies in the workplace.

‘Hot Button Issue.'

Stephanie R. Thomas, chief executive of labor and employment consulting firm Thomas Econometrics Inc. in Bristol, Pa., said concern is growing within state and federal agencies that monitor civil rights and labor laws. She noted that the Equal Employment Opportunity Commission hosted a March 12 hearing to gather information about employer use of social media and consider the implications for the laws enforced by the EEOC.

“Is this the hot button issue that everyone is filing suits over?—No,” Thomas told Bloomberg BNA March 31. “But it is something employers need to be concerned about. It is something that the EEOC and the regulatory agencies are concerned about.”

The Society for Human Resource Management has reported that employers increasingly are relying on social networking sites to recruit job candidates. In a survey published in April 2013, SHRM found 77 percent of its members reported regularly using social networking sites for recruiting, up from 56 percent in 2011. SHRM said its members use the sites to locate passive job candidates, search for active candidates, and create interest for hiring by posting information about their organizations.

LinkedIn has become the most important tool for employers using social media. The SHRM report found that 94 percent of employers using social media favor LinkedIn, about the same as the 95 percent who used it in 2011. Fifty-eight percent said they use Facebook, up from 54 percent two years earlier. Finally, 42 percent of human resources professionals said they use Twitter for recruitment, up from 39 percent in 2011.

Some Employers Express Ambivalence

Although enthusiasm is high for social media as a recruiting tool, SHRM found that some employers are ambivalent about such channels for screening job applicants. Only 20 percent of SHRM members said they actively use social networking sites and other online search functions to screen applicants, and 68 percent said they never use these strategies to screen candidates.

Nearly three-quarters of SHRM members in that latter category said they were concerned that such screening strategies would expose their organizations to legal risks.

Thomas, who consults with Fortune 500 clients on equal employment opportunity and compensation, said an important risk associated with social media channels involves accusations of intentional disparate treatment.

She said a job applicant might accuse an employer of using protected class information, gathered from a social media site, to discriminate. The threat is real, she said, because such sites expose the employer to a wealth of information that can't be used during the hiring process.

“One of the challenges of using social media is that there is a lot being posted that could disclose protected class information,” Thomas said. “So for a Facebook page or a LinkedIn page, you might see a photograph. From that you might be able to infer the gender of that person, the race, the ethnicity, the age of that person. You might be able to infer a disability status. You might be able to see this person is pregnant. This is not information you should have when you're making the hiring decision.’’

Can't ‘Unring the Bell.'

Angela Preston, general counsel for EmployeeScreenIQ, a Cleveland-based employment screening and consulting firm, said employers targeted for intentional discrimination would have a difficult time disproving the allegation. At a minimum, Preston said the employer would be forced to acknowledge awareness that the applicant is a member of a protected class based on the social media search.

“Once it is reviewed, it is really hard to unring the bell, so to speak,’’ Preston told Bloomberg BNA March 31. “Once the hiring manager or recruiter looked at the information, it is hard to prove he didn't consider it. It is hard to prove a negative. And the thing with social media and various websites is it is very easy to track who has looked at your profile. The web is a road map for who looked at what.’’

On a second front, Thomas and Preston said exclusive reliance on social media for recruiting might expose an employer to claims of disparate impact, alleging that the employer's recruitment and hiring process barred members of a protected class from being able to compete for employment.

Thomas and Preston said the applicant could assert that the demographic profile of the employer's preferred social media channel eliminated members of a protected class from consideration. Similarly, the applicant might argue that the employer's exclusive reliance on social media to attract applicants had a discriminatory impact on a protected class of applicants without access to online technology.

“If you are relying on only one source, or limiting your sources for the candidate pool, you could be excluding a protected class or putting a particular group at a disadvantage,’’ Preston said.

Risks Remain Theoretical

Despite these concerns, both plaintiffs' and defense attorneys working in the employment arena acknowledged that social-media-driven civil rights claims remain largely theoretical in the current environment.

Brian E. Koncius, a partner with Bogas, Koncius & Croson PC in Bingham Falls, Mich., whose firm usually represents plaintiffs in employment matters, said he is unaware of any plaintiffs making such allegations. Failure-to-hire claims are inherently difficult for plaintiffs, he said. Given the wrinkles of new technology and a climate of relatively high unemployment, he said, such cases would be even harder to prove in court.

“This is a new issue, it is interesting, it is sexier than some other things” in employment law, Koncius told Bloomberg BNA April 1. “But case law, due to the nature of the beast, is about two years behind. Things take time to work through the process. So it will take time to get cases, and rulings and appeals.’’

No Litigation By EEOC

The EEOC has exhibited caution as well.

Commission spokeswoman Christine Nazer told Bloomberg BNA April 2 that the EEOC hasn't filed any suits alleging disparate treatment or disparate impact based on an employer's improper use of social media. Nazer said the EEOC is unable to evaluate charge data on such questions because it doesn't currently track such charges.

During the EEOC's March 12 hearing, acting associate legal counsel Carol Miaskoff pointed to one federal sector appeal in which a complainant alleged she wasn't selected for a park ranger position with the National Park Service because of her age and sex.

The complainant alleged that the agency's recruitment strategy focused on social media channels, placing older workers at a disadvantage in violation of the ADEA. The strategy was ultimately unsuccessful, however (Reese v. Dep't of Interior, EEOC, No. 0120122339, 11/15/12).

In a hearing, the administrative judge found that the complainant “did not establish a prima facie case of disparate impact and therefore failed to allege unlawful discrimination in this respect,” Miaskoff said in her written testimony. “On appeal, the EEOC affirmed the AJ because complainant had not put forth evidence of disparate impact or a preference for younger applicants linked to the agency using social media for recruitment.”

No Plans for Guidance

Nazer said the EEOC has no plans to issue guidance on the subject.

“Issuing guidance is one of many tools that the agency may consider to provide information to the public, but the commission has not yet made that determination, since the recent meeting was meant to gather information and hear from stakeholders about this topic,” Nazer said.

In the absence of direct guidance from the commission, management-side attorneys and recruiting specialists pointed to several best practices that can help employers offset their potential legal risks.

Thomas said employers should develop recruiting, screening and hiring processes that limit their social media searching to a discrete number of relevant and objective issues about job candidates. These searches also should focus on the information the employer is entitled to have, particularly during the early stages of the hiring process.

Secondly, Thomas said employers need to build firewalls between recruiters and managers making hiring decisions. In line with this advice, she said social media vetting should be performed by a designated individual in the HR department, trained in the legal and relevant uses of such information. She said hiring managers generally shouldn't be involved in any social media screening.

With respect to disparate impact risks, Thomas said employers need to ensure that their recruiting processes attract a diverse pool of applicants.

“You want to take a very broad approach to recruiting,’’ Thomas said. “You want to use a variety of outreach avenues. It is perfectly fine to use social media. It's inexpensive, it's very effective, it's very quick. But it should not be the only way you are posting vacancies. You still want to use conventional channels to make sure you hit a very broad applicant pool and you are not unintentionally limiting it to certain groups who either have access to social media or choose to use that social media channel.’’

Best Practices

Jonathan Segal, a partner with Duane Morris LLP in Philadelphia, suggested five best practices for employers using social media to screen job candidates. Segal, who testified on behalf of SHRM at the EEOC hearing, said his advice was designed to help employers achieve the benefits of social media, while minimizing legal risks. Best practices, he said, include the following:•  Screening via social media should be performed by the HR department. Hiring managers and future supervisors shouldn't be involved in any social-media-driven screening processes.

  •  Social media checks should be conducted at the end of the hiring process in conjunction with any background checks required.
  •  Social media screenings should examine only “public profile” information. Employers shouldn't demand an applicant's passwords for social media accounts. This is specifically prohibited in 12 states, and employer requests for such information also could violate the Stored Communications Act in all 50 states.
  •  Employers should develop policies for determining when social media screenings are appropriate and perform such checks on a consistent basis. For instance, the employer might decide such screening is necessary only for workers managing company accounts, or workers interacting with customers, the public, or patients in the case of hospitals.
  •  Employers should document any adverse actions. Segal said employers are entitled to disqualify applicants exhibiting dangerous, harassing or illegal conduct on their public social media sites. Employers should document and store such information, however, in case an applicant later asserts discrimination.
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    Segal pointed out that the SHRM survey revealed a significant degree of reluctance with respect to social media screening. He stressed, however, that the legal risks can be effectively managed with sensible and consistent policies for screening job applicants.

    “There is a risk in being too risk averse,” Segal told Bloomberg BNA April 3. “Social media isn't new, it isn't cutting edge, it's mainstream. So to ignore it in recruitment is to avoid talent.”

    To contact the reporter on this story: Michael Bologna in Chicago at mbologna@bna.com

    To contact the editor responsible for this story: Michael O. Loatman at mloatman@bna.com

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