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August 2009            Vol. 9, No. 8

ESR Newsletter and Legal Update

1. Sourcing Candidates from Social Networking Sites
2. Are Business Connection Sites More Accurate than Resumes?
3. Employment at Will and Probationary Periods

1. Sourcing Candidates from Social Networking Sites

No discussion on recruiting these days is complete without an analysis of how the Internet is used for sourcing candidates. From social networking sites such as MySpace or Facebook, to blogs, Twittering, online videos, and business connection sites such as LinkedIn or Plaxo, recruiters have become focused with laser-like intensity on how to make use of these sites.

What is sometimes overlooked in the rush to use the Internet to recruit is the one question that needs to be asked first: What are the legal risks in using the Internet for recruiting, and how do we manage those risks?

First, allegations of discrimination is one critical area where employers and recruiters can find themselves in hot water when utilizing social networking sites such as MySpace and Facebook (sometime shortened to "MyBook"). Recruiters may be accused of disregarding candidates who are members of protected classes by passing over the online profiles of people based on prohibited criteria such as race, creed, color, nationality, sex, religious affiliation, marital status, or medical condition. All of those are things that may be revealed by a Facebook or MySpace search. There may even be photos showing a physical condition that is protected by the Americans with Disabilities Act (ADA) or showing someone wearing garb suggesting their religious affiliation or national origin. This issue is sometimes referred to as "Too Much Information" or TMI.

The problem is that once a recruiter is aware that an individual is a member of a protected group, it is difficult to claim that the recruiter can "un-ring the bell" and forget he or she ever saw it. It could be argued that if a passive candidate is passed over because of discriminatory criteria revealed on a social network site, they can be harmed, since they did not even know they were disregarded and are none the wiser. The problem with that approach is three-fold. First, discrimination and civil rights laws would likely still apply, even in recruiting passive candidates. Secondly, there are few secrets in the world. If a firm is using discriminatory criteria, a member of the recruiting team who feels uncomfortable about such a practice may well say something - either publicly on the web, or within the organization. Third, it can be argued that discriminatory criteria were being used if it turns out that the entire workforce happens to be homogeneous and does not include members of protected classes.

Of course, the analysis is complicated by the fact that the aggrieved individual may have placed the information on the web themselves. However, it would be challenging to suggest that a person somehow consented to discrimination by placing material on the web that was then used illegally by recruiters. Until courts rule on these issues, employers can only try to apply established legal concepts to their online recruiting efforts.

The issue for employers and recruiters is how to protect themselves from allegations of discrimination if no further action is taken after the recruiter discovers on the Internet that a person is a member of a protected class. For employers that want to use social network sites to screen a current candidate, the safest path for the use of social network sites is to obtain consent, and only search once there has been a conditional job offer. This helps ensure that impermissible information is not considered before the employer evaluates an applicant using permissible tools, such as interviews, job-related employment tests, references from supervisors, and a background check. At that point, the reason for searching social networking sites would be to ensure that there is nothing that would eliminate the person for employment, such as saying nasty things about your firm, or if the applicant engaged in behavior that would damage the company, hurt business interests, or be inconsistent with business needs.

For sourcers and recruiters who are looking for passive candidates, however, that approach does not apply. By definition, the recruiter does not have consent, since sourcing is at the start of the hiring process. Employers and recruiters in the sourcing stage may want to consider some of the following:

Another issue is whether the websites utilized are authentic. Social network sites need to be taken with a grain of salt. Employers need to be careful that the site they are looking at actually refers to the applicant. Many Americans have "online computer twins" - people with similar names. Another problem is "cyber slamming," online smearing usually done anonymously, such as derogatory comments on websites or even setting up a fake website that does not truly belong to your applicant. Yet another issue is whether the statements made are even true and credible, keeping in mind that the idea behind these sites is "friends talking to friends," and users of these sites have been known to embellish.

A problem yet to be fully explored by the courts is privacy. Contrary to popular opinion everything online is not necessarily fair game. Certainly if a person has not adjusted the privacy setting so that his or her social network site is easily available from an Internet search, that person may have a more difficult time arguing that there is a reasonable expectation of privacy. However, the terms of use for many social network sites prohibit commercial use and many users literally believe that their social network site is exactly that - a place to freely socialize. The argument would be that in their circles, it is the community norm, and a generally accepted attitude, that MySpace or Facebook pages are off limits to unwelcome intruders, even if the door is left wide open.

Until the courts sort this out, one thing does seem fairly certain - if an employer uses subterfuge to gain access, such as by creating a fake online identity just to penetrate a social network site, then the privacy line has probably been crossed. Of course, if using a screening firm to search the Internet, the federal Fair Credit Reporting Act (FCRA) would apply.

The bottom line as always when using the Internet for employment related matters: Proceed With Caution. There has yet to be clear law or court cases that set forth how to proceed in this area. In the meantime, employers and recruiters may want to approach the Internet with some caution before assuming that everything is fair game in the pursuit of passive candidates.

For more information on due diligence in hiring, contact Jared Callahan at ESR at 415-898-0044 or jcallahan@ESRcheck.com

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2. Are Business Connection Sites More Accurate than Resumes?

Recently, at a software conference for major online business connecting services, apparently the suggestion was made that profiles maintained by a candidate on such an online business service are more accurate than the resume maintained by the same candidate.

Looking at business connection sites during the recruiting or selection stage can certainly be another tool for HR or recruiting to try to differentiate a large group of candidates and whittle it down to a smaller group. Even then, there are significant issues to keep in mind, such as the potential for discrimination.

However, in terms of accuracy, keep in mind that if a person lies on a social networking site, there is no direct consequences. These sites do not contain a comment area where others can disagree, or warn employers that qualifications are overstated. In addition, colleagues may not even know that an applicant has lied. If an applicant has listed a certificate or educational accomplishment that is not true, exactly how are colleagues suppose to know that, much less bring it to anyone's attention. There certainly would be no mention made of past criminal records or civil suits for things such as harassment or trade secret theft. Those things are usually not going to be volunteered on a business connection site.

In addition, the suggestion without metrics that people do not lie on a social network site because others will view it will not likely be much of a defense in court if a firm hires a fibber, and it turns out a background check costing a few dollars would have revealed it.

The bottom line: To a certain extent, using these sites may be helpful in deciding who to hire, but it does not replace the employer's due diligence obligations. The fact remains that there is nothing as effective as actual verification of a candidate's claimed experience. The Internet may provide tools for sourcing candidates, but it simply does not provide due diligence.

For more information on the use of social network sites and employment, see ESR Social Networking Blog Entry

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3. Employment at Will and Probationary Periods

A critical issue for employers is the nature of the employee-employer relationship. Employers typically hire on an "at will" basis, meaning there is no employment contract and either side can terminate the relationship. Of course, nothing is that simple. Employers are normally advised to be very clear in all stages of the recruiting, interviewing, and hiring procedures that no promises or contracts are made, either expressed or implied, that modify the at-will arrangement. Again, nothing is that smooth. An applicant may argue that, by certain employer's actions or deeds, there is an implied promise of future employment that can only be terminated "for cause" as opposed to "at will." Examples of instances where an employee may argue they are no longer "at will" are listed below.

Language in an interview that says "if a person does well, the company will take care of them," or other similar promise of special treatment on the part of the employer.

Language in the employee manual that creates a "probationary period." The implication is that if a person passes the probationary period, they have vested or obtained a more secure status and there must be "good cause" to terminate rather than a right to terminate "at will."

Employee manual language that sets out a series of progressive disciplinary steps where an employee has a chance to improve performance. The implication is if they meet the standards, then the person is no longer "at will." Employers could add language that restates that nothing in the progressive discipline system modifies the at-will nature of employment, but it still can create issues.

A listing of actions or omissions that are grounds for discipline or termination. The argument is if one of these enumerated acts or omissions is not committed, then the employer needs cause to terminate.

When an employee has been with the employer for a period of time and has received promotions, regular pay increases and good performance reviews, the employee can argue he or she is no longer at will.

Along with appropriate statements in the application, the employee manual is also a critical tool to reinforce the "at will" nature of employment.

It is also necessary to insure that everyone with hiring responsibilities is trained not to make statements that imply a commitment beyond "at will." There are also other exceptions to the "at will" status, such as civil service employment, collective bargaining agreements, or public policy exceptions to "at will" status.

From the perspective of a Safe Hiring Program, maintaining the "at will" relationship can be vital to an employer in the event issues arise related to workplace violence or misconduct, or it is later discovered the employee made material misstatements or omissions during the hiring process. Even though an employer may have grounds to terminate based upon the misconduct or misrepresentation, the "at will" status will assist the employer's position.

(Excerpt from The Safe Hiring Manual, chapter 18 on "Important 'After Hire' Issues.") See Safe Hiring Manual

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ESR Articles (click for more info)

The FCRA in 4 Easy Steps
Find out how to be in compliance with the FCRA

Criminal Records and Employment Applications
What questions should employers be asking?

10 Safe Hiring Tools
These tools don’t cost anything and promote a safe and profitable workplace

Negligent Hiring
What occurs when Due Diligence is not performed

Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR's statements about any legal matters are not given or intended as legal advice.

Employment Screening Resources (ESR)
www.ESRcheck.com
7110 Redwood Blvd., Suite C
Novato, CA 94945
415-898-0044

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