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By Lydell C. Bridgeford
To avoid running afoul of myriad employment and labor laws, employers that peruse job applicants' Facebook, LinkedIn, and Twitter profiles during the recruitment and hiring stages only should consider information that is routinely evaluated as part of the traditional application process, a management attorney and a human resources consultant said during two separate forums.
If HR managers, recruiters, and supervisors are reading and evaluating social media information on an applicant that the employer would not ask on its job application, “then you probably shouldn't consider that information during the hiring process,” Sadina Montani, an attorney in the Washington, D.C., office of Vedder Price, told participants at a seminar co-sponsored by the firm's labor and employment group Oct. 19.
The HR team typically oversees the recruitment process, but quite often “you may have a supervisor who decides prior to meeting a job applicant he or she is going to do some online research on the job applicant that is not sanctioned by HR,” Montani said. This can result in a supervisor assessing information that “you don't want the supervisor to have because it's related to protected class status and might color the manager's hiring decision,” she said.
Speaking during an Oct. 12 webinar, Dr. Lisa D. Grant Harpe, an industrial psychologist and senior consultant for the PeopleFluent Research Institute, said most HR managers and recruiters understand that they are prohibited under federal labor laws from asking about a job applicant's race, sex, age, religious denomination, and pregnancy and disability status. The institute, a talent management consulting firm, co-sponsored the webinar.
Grant Harpe explained that the information profile page Facebook users are requested to fill out “is basically a direct list of what not to ask during the hiring process.” Recruiters and managers may have access to the applicant's Facebook information, including photos, if the user fails to designate certain privacy settings.
“First, they see your picture, so automatically they have access to a lot of prohibited information under federal labor laws. Just from your picture recruiters are going to know something about your age, race, and gender and potentially disability information, even if they don't have access to your account as a friend,” said Grant Harpe, who cautioned employers against using Facebook in the hiring process.
Both Montani and Grant Harpe urged employers to create policies and procedures on using social network sites in the hiring and recruitment process. Grant Harpe said a policy should explain “what information is exactly going to be evaluated.” She added that when an employer is looking at pieces of information on Twitter or a picture on Facebook, “you don't necessarily know the full picture.” The truthfulness and completeness of the information on a social media profile, especially if it is a Twitter account, should be carefully considered, she said.
The policy also can serve as a safeguard to protect an employer in case a group of applicants claims they were not hired because decisionmakers saw certain information about them via social media before the hiring process even started, Montani explained.
Grant Harpe recommended that employers assign one or two individuals to search social network sites for information about job seekers, and notify job seekers that social network information may be examined. She also advised employers to avoid providing preferential treatment to candidates who list certain information on their social networking profile or who have many Facebook friends and LinkedIn connections.
But equally important, treat everyone the same, both speakers said. For instance, “if you are concerned that everyone might not have a job profile description on their LinkedIn page, then don't use the job profile as information to be evaluated during the process,” Grant Harpe said.
It's tempting to run a search on a prospective job applicant before the hiring process starts, but “too much information is not necessarily a good thing, especially when you are looking at job applicants,” Montani said. For example, she explained, some LinkedIn users may have added former employers in their profile that they did not disclose on the application.
The speakers said employers increasingly are scanning job seekers' social media accounts.
Grant Harpe cited a 2009 CareerBuilder survey of 2,600 hiring managers that revealed that 45 percent of respondents screened job seekers through social networking sites. Thirty-five percent of respondents said they used social media information to decide not to hire a job candidate because the content, for example, displayed drinking or provocative photos.
In addition, an OfficeTeam 2011 survey found that 36 percent of responding HR managers said online profiles will replace resumes.
Employers should not be blindsided by the casualness of communication offered through social networking websites, Grant Harpe stressed. Seriously judging and reviewing an applicant's job qualifications can trigger various recordkeeping requirements, she explained. Executive Order 11246 requires federal contractors to keep employment-related records for two years, while Title VII of the 1964 Civil Rights Act requires employers to maintain records associated with the hiring process for one year. She urged employers to save or record all LinkedIn or Facebook searches and e-mail exchanges for the required time period related to individuals who meet the job qualifications.
In addition, Montani noted that the Labor Department's Office of Federal Contract Compliance Programs' internet applicant recordkeeping rule (23 HRR 1071, 10/10/05) requires contractors that consider electronic submissions of interest to retain records of all individuals who were considered for a particular position. Grant Harpe said social media websites would be considered covered by the rule.
Another potential legal downside of the use of social media to hire and recruit employees is the disparate impact upon minorities, the speakers said. According to estimates from the web-metric website Quantcast, 85 percent of the users on LinkedIn are white, while only 9 percent are Asian, 3 percent are black, and 2 percent are Hispanic (1 percent identified as “other”). Montani pointed out that this is something that OFCCP will take note of if a federal contractor limits search methods to a site like LinkedIn.
Grant Harpe said that employers that only consider job candidates who use certain social media sites run the risk of potentially having a disparate impact on race and age.
By Lydell C. Bridgeford
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