what hr executives can/cannot do when screening potential employees via online profiles david jones...

What HR Executives Can/Cannot Do When Screening Potential Employees Via Online Profiles

David Jones and Jeffrey RossMaterial in this seminar is for reference purposes only. This seminar is sold with the understanding that neither any of the authors nor the publisher are engaged in rendering legal, accounting, investment, medical or any other professional service directly through this seminar. Neither the publisher nor the authors assume any liability for any errors or omissions, or for how this seminar or its contents are used or interpreted, or for any consequences resulting directly or indirectly from the use of this seminar. For legal, financial, medical, strategic or any other type of advice, please personally consult the appropriate professional.

Material in this seminar is for reference purposes only. This seminar is sold with the understanding that neither any of the authors nor the publisher are engaged in rendering legal, accounting, investment, medical or any other professional service directly through this seminar. Neither the publisher nor the authors assume any liability for any errors or omissions, or for how this seminar or its contents are used or interpreted, or for any consequences resulting directly or indirectly from the use of this seminar. For legal, financial, medical, strategic or any other type of advice, please personally consult the appropriate professional.

Dave Jones and Jeffrey Ross

What HR Executives Can/Cannot Do When Screening Potential Employees Via Online ProfilesDavid Jones and Jeff Ross

www.ExecSense.com © ExecSense, Inc.

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About the Webinar Speakers



David Jones, PhD – Growth Ventures, Inc.

A senior Industrial/Organizational Psychologist with more than three decades experience in the recruitment and hiring arena

A leader in the candidate recruitment, screening, and assessment space. Author of the recently released Jossey-Bass book Million Dollar Hire: Build Your Bottom Line, One Employee at a Time (www.million-dollarhire.com)

Having founded and grown businesses in both the U.S. and internationally, launching industry movements in the HR process and technology sectors

A history working with most of the Fortune 100 at a global level, along with startup and public sector organizations At the forefront in recruiting and hiring legal compliance; an expert witness and advisor to organizations in how to avoid legal challenge

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http://www.million-dollarhire.com/

About the Webinar Speakers (cont)



Jeffrey Ross, Esq – Seyfarth Shaw LLP Partner in Seyfarth Shaw, a pre-eminent national employment law firm

Represents major employers in complex workplace litigation concerning employment discrimination, wage/hour issues, labor/management relations, executive employment contracts and employee benefits

Co-Chair of Seyfarth’s Hiring, Testing and Selection Best Practices Team

Selected by peers a Leading Lawyer and a Super Lawyer

Rated by Chambers USA as one of the top labor and employment lawyers – “an expert in complex employment litigation”

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Overview – It Doesn’t Take a Hot Economy to Make Recruiting and Hiring Important!

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Overview – Hiring Decisions Involve a Lot of Money!

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Overview – The Unemployment Numbers Are Misleading!

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Overview – Where We Are Today



• Even today, organizations are hiring millions of employees every month

• Every hiring decision carries major financial impact – far more than many understand

• Even with relatively high overall unemployment rates, there are both “buyers” and “sellers” markets in the labor market

• For many jobs, employers need to focus on sourcing, attracting, and locating the best talent before they turn to screening and assessment

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What to Know

1. Today’s unfolding world of technology – and particularly the social media space – are driving new ways to source and attract talent

2. Some of the tools bring fundamentally new approaches to recruiting; some simply “automate” things we’ve done for years

3. Some involve legal compliance standards HR staff have dealt with for many years; some bring new compliance challenges

4. Key to all is setting a clear strategy, assembling the tactics, and tracking results to know what works, and to see the “red flags”

5. There’s great potential for payoff in using these new tools… if care is taken from the outset

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The Social Media Landscape Today… Immense

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An Exploding Array of Social Contact Tools

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LinkedIn

• As of August 4, 2011, LinkedIn operates the world’s largest professional network on the Internet with more than 120 million members in over 200 countries and territories.

• There were nearly two billion people searches on LinkedIn in 2010.

(as of August 12, 2011, http://press.linkedin.com/about )

YouTube

• Over 3 billion videos viewed every day• More than 13 million hours of video uploaded during 2010; 48 hours of

video uploaded every minute; 8 years of content uploaded every day• More video uploaded to YouTube in 60 days than the three major US

networks created in 60 years

(as of August 12, 2011, http://www.youtube.com/t/press_statistics )

http://press.linkedin.com/about

http://www.youtube.com/t/press_statistics

Even More

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Facebook

• More than 750 million active users who returned to the site in the last 30 days• 50% of Facebook’s active users log on to Facebook in any given day• People spend over 700 billion minutes per month on Facebook• Average user creates 90 pieces of content each month• More than 250 million active users accessing Facebook through mobile devices• People who use Facebook on their mobile devices are twice as active on

Facebook than non-mobile users. (as of August 12, 2011 - http://www.facebook.com/press/info.php?statistics)

Twitter

• 200 million users; 460k new users each day• 155 million “tweets” per day (as of August 12, 2011, http://business.twitter.com/basics/what-is-twitter )

http://www.facebook.com/press/info.php?statistics

http://business.twitter.com/basics/what-is-twitter

Recruiting Operations Are Tuning in to Social Media

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• 92% of companies hiring in 2011 currently use, or plan to recruit through, social media sites

• 46% of companies plan to invest more in recruiting via social networks

• 31% of candidates disclose their social networking presence when applying for a job

• 58% of companies have successfully hired applicants through a social networking site

Source: JobVite Social Recruitment Survey (2011)

Employers Cite Many Benefits

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• A cost-effective means for reaching potential candidates

• The potential to fill vacancies faster

• A way to reach “passive” candidates

• Access to invaluable information you may not get otherwise

• Candidates can showcase qualifications and interest in a job

• Possible avoidance of negligent hiring claims?

New Recruiting Tools Are Building on Social Media

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New Technology Also is Driving Candidate Screening for Social Media Contacts

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But the New Technology Brings Risks

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Data privacy laws – local, national, and global Treatment of personal identifying information Potential collection of misinformation and inaccuracies Information about off-duty conduct

state law protection of off-duty conduct – approximately 26 statesNew York Section 201-d

political activity;use of legally “consumable products”; and“any lawful, leisure-time activity… for recreational purposes…

sports, games, hobbies, exercise, readying and the viewing of television, movies and similar material.”

Connecticut Sec. 31-51q applies limited 1st Amendment rights to private employers

Remember…

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What Happens In Vegas Stays On…

More Risks

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• Capturing information impermissible to consider (e.g., protected class status)

• Might “taint” an otherwise well-based hiring decision

• Might lead to a decision based on incorrect information

• Evidence of such a search may be revealed in subsequent litigation

• Depending on technology, may not be sourcing from diverse pool

• For federal contractors, tricky to fulfill data collection and recordkeeping requirements for OFCCP purposes

You Might Find Information You Don’t Want to Know…

Birth Date / AgeBirth Date / Age

Race / National OriginRace / National Origin

ReligionReligion

DisabilitiesDisabilities

Family and Family and RelationshipsRelationships

Smoking/Tobacco UseSmoking/Tobacco Use

Sexual OrientationSexual Orientation

Political AffiliationPolitical Affiliation

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… and be accused of wanting to know it!

Remember, You Can’t “Unring” the Bell!

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Purchasing Social Media Profile Information Brings Challenges, Too

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• The employer must comply with the FCRA if using a third-party to “scrape” social media sites

• Some new businesses conduct social media searches and remove sensitive demographic and other information, such as drug references, violence, gang activity, racism, etc.

Areas to Watch Out For: 1 – Bias in Sourcing

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• In the past, certain types of recruiting practices (e.g., word-of-mouth) have given rise to adverse impact discrimination challenges

• The labor pool available through social media networks is not (yet) reflective of overall population demographics

• For example, African-American and Hispanic use of Twitter and LinkedIn still lower than overall population

• Federal contractors are required to describe recruiting methods and applicant pools through affirmative action plans

Areas to Watch Out: 2 – Internet Applicant Rule

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• Federal Contractors required to track applicants, solicit demographic information, and maintain records of searches.

• “Internet Applicant Rule”• Effective Feb. 2006 – already outdated; did not contemplate social networking• OFCCP position

• they expressed interest by coming to the company page• you considered them for a particular position• you considered whether or not they had the basic qualifications for the position• individual does not “self-select out” of the process

• Does a person’s online contact with employer (or vice versa) render the process subject to the regulations on “Internet Applicants”?

• If so, must: • include on applicant flow log with other applicant flow data• include in adverse impact analyses• maintain search records (position, criteria, date, resumes and related

documents)

Areas to Watch Out For: 3 – Data Retention

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• Even use of social media only for “contact relationship management” can lead to problems

• Recruiters may transfer information about potential candidate to contact management system (CMS) database or applicant tracking system (ATS)

• Searches on CMS, as well as ATS are subject to search retention requirements• Applicant status may also attach, if person has basic qualifications

• CMS should be used only for developing relationships; NOT for screening candidates

• Often profiles & resumes will be kept in the CMS• CMS is searchable; searching qualifications for a particular job is risky;

internet applicant rules may attach

Today’s Best Practices

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• Employers should discuss guidelines:• what information to seek• how it relates to qualifications for the position in question, what types of

information may be disqualifying and why• develop protocols as to what search engines, networking sites or other

Internet resources will be used, • implement procedures for verifying information obtained

• Be cognizant of EEO laws (age, gender, religion, race, national origin, disability, etc.)

• Do not use social media as the sole means for advertising available positions

Today’s Best Practices (cont)

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• Run searches consistently as to all candidates for a given position, regardless of protected class status

• Don’t permit business interviewers to search candidates?

• Limit social media searches to only post-screening-interview candidates?

• If search results are adverse or damaging to the candidate, consider advising the candidate of those results and giving him/her the opportunity to respond to and/or correct the information

• If search results are used to disqualify a candidate, involve HR, record what results were used and why they were disqualifying

Today’s Best Practices (cont)

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• Establish a firewall for screening information

• Retain search results together with other application and/or hiring documentation

• Comply with all EEO, state and local anti-discrimination laws both in searching and in using search results

• Comply with statutes pertaining to arrest and/or conviction records and use of such information

• Comply with statutes or regulations protecting legal, off-duty activities

Conclusions

• Social media are playing a growing role in recruiting and hiring systems; they are here to stay

• The rules and regulations that come with these new practices already are in place; new ones are on the way

• Like all hiring practices, the way these tools are used must boil down to the basic standards of job-relatedness, fairness of use, and legal compliance

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