Recruitment Marketing Boot Camp

Social Media and Hiring: Legal Considerations for Every Employer

2

What to Expect From the Webinar

• Great Guest Speaker• Quick Intros • Webinar Topics

• Social Recruiting: Stats, Trends & Opportunities• Opportunities & Issues using Social Media• Understanding the Legal Risks• Creating and Applying a Policy

• Summarize Take Aways• Q&A

• Please Ask Away!!!

3

Understanding your Core Value?

• Recruitment Marketing Agency• Recruiting, Digital Marketing, Communications &

Branding Experts• Extension of Your Recruiting Team

– Partner to Your Marketing Team • Make Sense of The Chaos• Going Beyond Job Boards• HQ in Boston, MA

– Offices in San Diego & Santa Clara

About HireClix

4

Today’s Guest Speaker

Renee M. Jackson, Associate, Labor and Employment

Nixon Peabody LLP - BostonRenee Jackson represents employers in all areas of labor

and employment law, focusing primarily on employment counseling and litigation. She defends employers against allegations of discrimination and harassment in both state and federal courts, and at agencies such as the Massachusetts Commission Against Discrimination and the EEOC.

Renee counsels both domestic and international employers on the various employment law issues they face in the United States, including restrictive covenants, wage and hour issues, workplace policies, discrimination, reductions in force, employee discipline, all aspects of hiring, and the use of social media in the workplace. Renee also has experience with traditional labor relations, employee benefits, and general civil litigation.

5

Understanding Today’s Social Recruiting Strategies

6

Go Beyond Job Boards – What Changed?Monthly Unique Visitors (US Only)

Monthly stats from compete.com & ComScore Media Metrics for July 2011.

7

Where Are Passive Candidates?

Statistics and graphics from LinkedIn Recruiting Solutions White Paper, The Job Seeking Status of the Fully Employed: authored by Lou Adler Dec 2010.

8

What are Your Peers Doing in Social Recruiting?

9

Leveraging Social Networks hits Critical Mass

Jobvite’s The State of Social Recruiting Survey - 2011

10

Build a New Recruitment Marketing Mix…“It will be more important to use a variety of marketing tools, including targeted marketing, Twitter, and Facebook, as well as LinkedIn, to interest more people in learning about your organization and opportunities.”

Kevin Wheeler in ERE on 1.3.11

Innovate: Use New Channels in Smart Ways

11

Social Media Recruiting: Legal Considerations

It is lawful to use social media to find, target, and recruit candidates.

• No law prohibiting use of social media in the recruiting process• BUT: employment laws/concepts and common sense provide

guidance on restrictions, permissions, and pitfalls• SUMMARY: social media is a useful tool to source and recruit

candidates, but it should be used as part of a larger recruiting strategy/approach• It only takes one creative plaintiff (or plaintiff’s attorney)• You do not want to be the test case!

12

Social Media Recruiting: Legal Considerations

• Targeted advertising pitfalls:• Targeting by age, race, gender, sexual orientation, etc.

• Anti-discrimination statutes• Affirmative action concepts

• Targeting by current or former employer• Inducing breach of non-competition agreement• Unfair business practices

• Tips to minimize liability exposure:• Use social media as part of larger “marketing mix”:

• traditional/new media mix• in-person networking events• job fairs• referrals

• Don’t get too specific with advertisements • Use a series of targeted advertisements

13

Social Media Recruiting: Legal Considerations

• Fan pages (corporate or career-specific):• Easy to learn protected class information of “fans”

• Keep this in mind when a “fan” becomes an applicant• Be prepared to engage in public forum with:

• Former employees (disgruntled or otherwise)• Current employees (same)• Applicants (qualified and unqualified)

• Be prepared to answer questions, respond to comments, take down content• Must set expectations and guidelines for your own employees who contribute

content to or manage that page

14

Social Media Recruiting: Legal Considerations

• Fan pages (corporate or career-specific):• Do you have the resources to contribute content, monitor, and respond? • Who will provide and manage content?

• Human resources• Marketing

• Company should set up accounts, maintain password, direct content • Employees are contributing content on behalf of the Company• Set guidelines and expectations for:

• Posting of images• Linking to external sites• Non-posting of confidential, proprietary, defamatory content• Engaging in discussions, responding to negative comments

15

Social Media Recruiting: Legal Considerations

• Recruiting someone specifically for their network or contacts:• An applicant’s social media “issue” with his or her former employer might

become your problem after you hire that individual• Might not be their network or contacts

• Ownership and portability concerns• Non-competition and non-solicitation concerns

• Connecting with professional contacts via LinkedIn could be a violation of a former employee’s non-solicitation provision

• New employer could find itself with a new employee embroiled in litigation, or worse, on the receiving end of a claim for tortuous interference with contract (aiding/abetting breach of restrictive covenant)

• Don’t ignore social media when analyzing whether to hire an applicant with a non-competition agreement

16

Social Media Hiring: Legal ConsiderationsYou have sourced these candidates from social media. Now what?

• Access to info typically not available in traditional hiring process:• Positive and negative attributes, contributions, etc.

• Community involvement• Publications• Achievements and awards• Professional and personal interests• Writing/communications skills• Illegal drug use • Negative feelings about previous employers• Overtly racist or discriminatory tendencies

17

Social Media Hiring: Legal Considerations• Access to info typically not available in traditional hiring process:

• Protected class status• Federally protected classes:

• Title VII: race, sex, color, religion, national origin • ADA: disability• ADEA: age• GINA: genetic information• VEVRAA/USERRA: veteran or military status

• State FEPAs/local ordinances: • sexual orientation • gender identity • familial status

• Lawful off-duty conduct:• smoking

18

Social Media Hiring: Legal Considerations

• Avoid the temptation to get more information• If “Googling” applicants, be consistent and non-discriminatory

• Who will be screened?• When in the hiring process?• What information will be sought?• How will the information be reviewed and stored?

• Look only at publicly-available information • Don’t use passwords or try to gain access to private or unauthorized pages• Don’t ask for usernames and passwords of applicants• Don’t friend or connect to applicants only to see more personal information

• If already connected through recruiting process, consider implications of connecting again via other social media

19

Social Media Hiring: Legal ConsiderationsBut can I use the information I found?

• Employment decisions – including hiring or not hiring – based on an applicant’s protected class status are prohibited• Discrimination claims – including class claims – may arise from

discriminating against an individual or group of individuals based on protected class status during the hiring process

• Make sure those responsible for hiring know applicable protected classes• May be difficult to show non-use of information

• It may be lawful to use the remaining information found• Hiring decision must always be supported by:

• Legitimate, non-discriminatory reason(s); and • Detailed documentation

• Consult with employment or in-house counsel before making an employment decision based on information found in social media

20

Social Media Recruiting: Compliance Tips

• Emerging workplace issue with little case law• Understand the legal restrictions• Don’t ignore the risks • Use social media as part of larger strategy/approach• Craft appropriate policies and procedures • Be consistent and non-discriminatory• Stay current with legal developments• Seek guidance from counsel

Don’t be the test case!

Questions & Answers

22

How to Reach us…

Contacts –

Renee M. JacksonNixon Peabody LLP100 Summer StreetBoston, MA 02110617.345.1028rjackson@nixonpeabody.com

Neil CostaHireClix617.899.1166neil.costa@hireclix.com