Employer Risk of Social Media RecruitingKable Nunnally, MBA

Social Media platforms

● Facebook● Twitter● LinkedIn● Vine● Pinterest● YouTube

Social Media - monthly users

● Facebook - 1.28 billiono 63% visit once a day, 40% twice a day

● Twitter - 255 milliono 46% visit once a day

● LinkedIn - 76 million

● Pinterest - 60 million Quantcast.com

Social Media Recruiter Usage

Similarities:

● Job postings

● Vetting candidates

Jobvite - Social Recruiting Survey 2013

78 % of Recruiters have made a hire using Social Media

Legal Risks for Employers

● Discrimination

● Negligent Hiring

● Disparate Impact

Risk cont’d - Discrimination

Social Networking sites contains info covered under Title VII- Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. Title VII also applies to private and public colleges and universities, employment agencies, and labor organizations.

Discrimination case law examples

EEOC v. Choctaw Transp. Co., Inc., 1:10-cv-01248-JDB-egb (W.D. Tenn. Jan. 19, 2012) In January 2012, a marine construction and transportation company located in Dyersburg, Tenn., will pay an African-American job applicant $75,000 to settle a racial discrimination lawsuit filed by the EEOC. According to the EEOC's lawsuit, the company refused to hire a Black job applicant for a deckhand position because of his race in violation of Title VII. In addition to the monetary relief, a three-year consent decree requires the company to use its best efforts to fill up to 25 percent of available positions with African-Americans.

EEOC v. MWR Enterprises Inc., II, C.A. No. 3:10-cv-00901 (M.D. Tenn. Feb. 23, 2012) In February 2012, the owners of Piggly Wiggly supermarkets in Hartsville and Lafayette, Tenn., agreed to pay $40,000 to settle a race and gender discrimination lawsuit filed by the EEOC. In its lawsuit, the EEOC asserted that the Piggly Wiggly locations owned by MWR Enterprises Inc. II violated federal law by maintaining policies and practices that intentionally failed to hire African-Americans because of their race for positions at the company's Piggly Wiggly store in Hartsville and Lafayette. The EEOC further charged that the company maintained a segregated work force and an established practice of not hiring males for cashier positions at the same locations. The four-year consent decree also requires Defendant MWR Enterprises Inc., II, to establish a written policy which provides that all job assignments will be made without consideration to gender; establish guidelines and procedures for processing employment applications; provide Title VII training on race and gender discrimination to its managers; meet recordkeeping and reporting requirements; and post a notice about the lawsuit and settlement at its store locations.

Discrimination cont’d

• ADA - Americans with Disabilities Act

• ADEA - Age Discrimination in Employment Act of 1967

• GINA - Genetic Information Nondiscrimination Act of 2008

• VEVRAA – Vietnam Era Veterans Readjustment Assistance Act of 1974

Discrimination - cont’d

Americans with Disabilities Act (ADA) - prohibits discrimination against

people with disabilities in employment, transportation, public accommodation, communications, and governmental activities.

Age Discrimination in Employment Act of 1967 (ADEA)- protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).

- In Neiman v. Grange Mutual Casualty Co. (C.D. Ill. 4/26/12), the plaintiff claimed that he was not hired for a position because of his age. The employer argued that it could not have considered the plaintiff’s age because it had no idea how old he was when it made its decision. The plaintiff, however, argued that the employer must have been aware of his age because he included the year he graduated from college on his LinkedIn profile.

Discrimination - cont’d

GINA - Genetic Information Nondiscrimination Act of 2008 is an Act of Congress in the United States designed to prohibit the use of genetic information in health insurance and employment. The Act prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a disease in the future. The legislation also bars employers from using individuals' genetic information when making hiring,firing, job placement, or promotion decisions.

EEOC v. Founders Pavilion, Inc., 13-CV-01438 The EEOC charged that Founders Pavilion requested family medical history as part of its post-offer, pre-employment medical exams of applicants. As part of a five-year consent decree resolving the suit, Founders Pavilion will provide a fund of $110,400 for distribution to the 138 individuals who were asked for their genetic information.

Negligent Hiring

Employers can be held liable for an employee’s wrongful acts, if the employer knew or had reason to know the risk of employing a certain individual.

Negligence cont’d• A furniture company was found liable for $2.5 million for negligent hiring and retention of a

deliveryman who savagely attacked a woman customer in her home. (Tallahassee Furniture Co., Inc. v. Harrison)

• A nursing home was found liable for $235,000 for the negligent hiring of an unlicensed nurse with numerous prior criminal convictions who assaulted an 80-year-old visitor. (Deerings West Nursing Center v. Scott)

• An employee with a criminal record sexually abused a child; his employer was found liable for $1.75 million for negligent hiring and retention. (Doe v. MCLO)

• A vacuum cleaner manufacturer was found liable for $45,000 because one of its distributors hired a door-to-door salesperson with a criminal record who raped a female customer in her home. The manufacturer should have required its distributors to conduct pre-hiring screening of door-to-door salespersons to prevent hiring of persons with criminal histories. (McLean v. Kirby Co.)

Disparate Impact

A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.

Social media, cont’d.

Pew Research Center’s Internet & American Life Project

Disparate Impact cont’dGriggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), articulated the disparate impact theory and constructed a model of proof that the plaintiff and defendant must use in presenting their cases. In Griggs, the employer required a high school diploma and a passing score on two professionally developed tests. Although the lower courts found no liability because the plaintiff failed to prove that the employer had a discriminatory motive for the requirements, the Supreme Court reversed the decision. The Court stated that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." 

In a famous quote, the Court said that the 

"absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built in headwinds' for minority groups andare unrelated to measuring job capacity."

Disparate Impact cont’dRicci v. DeStefano, 557 U.S. 557 (2009), was a decision by the United States Supreme Court concerning employment practices by New Haven, Connecticut's fire department. Eighteen city firefighters, seventeen of which were white and one was Hispanic, brought suit under Title VII of the Civil Rights Act of 1964 after they had passed the test for promotions to management positions and the city declined to promote them. New Haven officials invalidated the test results because none of the black firefighters scored high enough to be considered for the positions. City officials stated that they feared a lawsuit over the test's disproportionate exclusion of certain racial groups from promotion under the controversial "disparate impact" theory of liability.

The Supreme Court heard the case on April 22, 2009, and issued its decision on June 29, 2009. The Court held 5–4 that New Haven's decision to ignore the test results violated Title VII because the city did not have a "strong basis in evidence" that it would have subjected itself to disparate-impact liability if it had promoted the white and Hispanic firefighters instead of the black firefighters. Because the plaintiffs won under their Title VII claim, the Court did not consider the plaintiffs' argument that New Haven violated the constitutional right to equal protection.

How to mitigate risk for Employers

Social Media policy:

Collaborate with Legal, HR, and Management to adopt a comprehensive policy that covers recruitment activities

Mitigate risk cont’d

Job Descriptions:

• Organization needs to have written, detailed, and standardized job descriptions that could be used in the event a candidate alleges discrimination

• Follow the EEOC, FLSA, DOL suggested format

Mitigate risk cont’d

Application & Selection process:

• Needs to be part of a larger marketing mix

• Offer the option for candidates to fill out an application on site via computer or paper

• Designate a non-decision maker to screen applicants sourced from Social Media and scrub the non-relevant information before presenting it to the Hiring Manager

Risk – Application & Selection cont’d

Interviews:

• Process needs to be consistento same questionso same manner

Pre-employment testing: • Confirm its intended use• Make sure it is valid and reliable

Risk – Application & Selection cont’d

References:

• have a process

• determine number of references

• previous supervisors are key

It is legal to use social media to source and recruit candidates and it can be a very useful tool but hiring decisions can not hinge soley on any information considered a “Risk” to your Organization.