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PROTECTING CLIENTS FROM UNNECESSARY LIABILITY When Using Social Media in Recruiting and Hiring

TODAY, virtually all companies use social media as a tool to attract, recruit and hire employees. Unfortunately, many organizations also are using social media in a way that can draw a potential lawsuit. As counsel for these companies, the key is to step in and make corrections in procedures and practices before suits are filed.
Companies generally use social media in the hiring process when:

  1. Advertising for and recruiting candidates
  2. Screening applicants
  3. Conducting a social media background check as part of the hiring process

Hiring managers need to be aware that the potential liability and risk of being sued increases through each of these three stages.

SCRUTINIZE HOW SOCIAL MEDIA IS USED AS A RECRUITING TOOL
Social media is an inexpensive way to reach many prospective candidates quickly, which is why it is an attractive recruiting tool for many companies. However, marketing positions via social media, through use of targeted ads for example, can lead to claims of racial, age, and religious discrimination, and investigations by the U.S. Equal Employment Opportunity Commission (EEOC).

As counsel for companies using social media for recruiting, it is important to scrutinize recruiting practices closely. If the company uses a targeted ad (offered by some social media sites), this may target anyone who has friended or “liked” the company’s site. If the company’s social media “audience” is comprised solely of teenage boys, the company may become a target for EEOC investigators and plaintiff’s counsel, who can claim that the directed ad was designed to exclude other groups. This can be particularly problematic if the company has a contract with the government, and needs to reach out to minorities, women, the disabled and veterans.

SCREENING APPLICANTS VIA SOCIAL MEDIA IS A DANGEROUS PRACTICE
Using social media to screen applicants is a rapidly growing cause for companies to be sued. Counsel should advise clients that screening applicants by looking at their Facebook pages is inadvisable and could to get them sued because a Facebook page is likely not intended to be viewed by prospective employers. By reading someone’s posts, looking at his/her pictures, and doing some quick math on his/her graduation dates, it is fairly easy to ascertain a candidate’s age, race, national origin, sexual orientation and/or disability status. Managers should be trained that companies are not allowed to consider these things as a prospective employer. If these factors are assessed, companies face the risk of having to explain why this information was viewed before eliminating an applicant from the interview pool.
Counsel also should inform clients that in addition to discrimination lawsuits, screening applicants via social media may directly run afoul of the law. Both the federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA) have specific rules on notice that must be provided to a consumer (i.e. potential employee) before a consumer report can be obtained, and he/she must be informed if negative information was a basis for an employment decision. In addition to the FCRA and ICRAA, there are a host of laws governing the use of credit checks and criminal records for hiring. In relation to a company’s social media screening uncovering protected information, without proper guidance from counsel, it is very easy for a company to make wrong moves and unwittingly violate a law when eliminating an applicant from the interview process.

Counsel should suggest that employer clients consider the model provided by the rising trend of “ban-the-box” laws which prohibit (mostly public) employers from performing criminal background checks until after an offer is made. Since social media behavior, like someone’s criminal history, is more likely to be used as a basis to deny employment a good deal of time, money and potential liability can be saved with a policy of transparency. Companies should tell all applicants that they will be subject to a comprehensive background check, including social media, only after they are given an offer of employment. Most applicants who know they will not pass this hurdle will simply not apply, and then the company is only focusing resources on people who are otherwise qualified for the position.

USE OF SOCIAL MEDIA FOR BACKGROUND CHECKS IS A BALANCING ACT
While companies can draw lawsuits for conducting background checks on potential employees, it is even more likely to draw lawsuits for failing to run background checks. When advising clients on background checks, the recommendation is to analyze and balance the costs and benefits of conducting a background check. The cost of the information needed should be measured against the cost (i.e. risk of litigation or bad public relations) if a lawsuit develops after hiring the wrong person. With respect to use of social media, it should never be the sole source of background check information.
Counsel should be advising corporate clients that the first step, when determining how social media will play a part in background searches, is to decide what information is needed from the social networking sites. Is social media expertise a requirement of the job? Will the employee be high profile such that his or her public posts reflect on the company? Is there need for more than just résumé verification? The goal is to assure that the company’s actions were consistent, objective and job-related.
In addition, companies should ensure upon signed authorizations from applicants that specifically mention a comprehensive social media check. Assuring that corporate clients keep record of all the background searches, and provide the applicant with negative information that may disqualify them while allowing them the opportunity to rebut that information, will greatly reduce the chance for a lawsuit down the line.

TIPS TO ASSIST YOUR CLIENTS IN AVOIDING LIABILITY
To assure compliance with Title VII, the Fair Employment and Housing Act (FEHA), current state laws and the like, it is important to assure your clients’ stated policies and handbooks are updated and being enforced properly in accordance with various laws. Hiring managers should be trained and told repeatedly that they cannot do any research into candidates beyond what HR provides. They should be advised that all notes and interview documents should be returned to HR and destroyed following interviews, so as to avoid unexpected production of these notes in litigation. One manager’s handwritten comments on a résumé can lead to evidence of the alleged discriminatory action in hiring decisions. Hiring managers need to be encouraged not to email comments, as email is eternal and can easily be taken out of context.

Assure that you, as the company’s counsel, or HR, is doing all of the social media screening and checks, and that managers are not violating AB-1844 by asking applicants or employees for passwords or other access to their social media accounts.
Finally, be aware that certain actions taken as an attorney when involved in the hiring and firing processes for a company can be discoverable. For example, if an attorney is the hiring manager, the notes taken by that attorney during the hiring process will likely not be privileged.

Todd R. Wulffson and Lindsay Ayers

Todd R. Wulffson is partner at Carothers DiSante & Freudenberger LLP, a leading California employment, labor and immigration law firm providing litigation and counseling services to California employers. Wulffson has 25 years of experience counseling and defending businesses in labor and employment issues and has extensive experience representing employers across the entertainment, manufacturing, banking, hospitality, financial services and retail industries. Wulffson focuses on issues related to human resources, and the implementation of proactive measures to reduce risk and cost, including substantial experience in the evolving area of social media in the workplace. He is a frequent speaker, author and resource to employers nationwide on analyzing and implementing employee-related social media policies.To contact Wulffson, email him at twulffson@cdflaborlaw.com or call (949) 622-1661. Lindsay Ayers is a trial attorney and partner at Carothers DiSante & Freudenberger with more than a decade of legal experience. She frequently litigates on behalf of California employers in state and federal courts on employment-related claims of wrongful termination, discrimination and harassment as well as claims of unfair competition, breach of contract and various business torts. Ayers is a sought-after speaker on labor and employment issues. To contact Ayers, email her at layers@cdflaborlaw.com or call (949) 622-1661.

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Filed Under: Featured StoriesPractice Management

About the Author: Todd R. Wulffson is partner at Carothers DiSante & Freudenberger LLP, a leading California employment, labor and immigration law firm providing litigation and counseling services to California employers. Wulffson has 25 years of experience counseling and defending businesses in labor and employment issues and has extensive experience representing employers across the entertainment, manufacturing, banking, hospitality, financial services and retail industries. Wulffson focuses on issues related to human resources, and the implementation of proactive measures to reduce risk and cost, including substantial experience in the evolving area of social media in the workplace. He is a frequent speaker, author and resource to employers nationwide on analyzing and implementing employee-related social media policies.To contact Wulffson, email him at twulffson@cdflaborlaw.com or call (949) 622-1661. Lindsay Ayers is a trial attorney and partner at Carothers DiSante & Freudenberger with more than a decade of legal experience. She frequently litigates on behalf of California employers in state and federal courts on employment-related claims of wrongful termination, discrimination and harassment as well as claims of unfair competition, breach of contract and various business torts. Ayers is a sought-after speaker on labor and employment issues. To contact Ayers, email her at layers@cdflaborlaw.com or call (949) 622-1661.

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