Laws Surrounding the Talent LifeCycle

Penn State University
Course: Staffing and Training Strategies in Organizations

Lesson Assignment: 

Long Essay: (min 750 words, max 1000 words)

Given the increasing popularity of social media and technology usage in the talent acquisition process, describe the legal risks associated with social media in recruiting and measures organizations can adopt to reduce the risk of discrimination claims.  In your essay, discuss the current definition of "applicant" as defined by the EEOC, privacy considerations in reference checks given the proliferation of information on sites such as Facebook and Twitter and suggestions that you have, based on your research, for organizations and applicants to minimize their risk in this era of open access to information. Your research should include recent court cases and their findings as well as a discussion on the position adopted by the organizations in these cases.

Kendra Novak Thornton

June 8, 2014

Lesson 03 Laws Surrounding the Talent Life Cycle

       When organizations use social media such as Facebook, LinkedIn, YouTube, blogs or Twitter as part of their talent acquisition process they are exposing themselves to several legal and financial risks.  “Through social media, individuals voluntarily disclose a vast amount of personal information not typically available outside of an individuals’ personal circle of friends and family. This can range from what movies and books an individual enjoys, to which political candidates the individual supports, to how (and with whom) an individual spends his or her personal time. Not surprisingly, many employers want to use this large quantity of free data to “cybervet” candidates at some point during the interview process. After all, the information is free, easy to access, and oftentimes provides more insight into a candidate than an entire day’s worth of formal interviews.” However, when personal data are disclosed through social media such as race, age, religion, gender, national origin or genetic information and employers use this information for their recruiting and selection decisions, they are at risk of being sued for federal employment law violation.  

Lawsuits can damage an organizations public image and they can cost them millions of dollars in court costs and fees. For some businesses this could lead to bankruptcy. The Civil Rights Acts of 1964, the Pregnancy Discrimination Act, the ADEA, the ADA and GINA, to name just a few, all apply to recruiting efforts through social media.  And whether information is obtained from social media or elsewhere, when an employer says “I’m not hiring that person because of their (age, religion, or medical condition) they have violated those applicants employments rights and are at risk for penalties.

On the other hand, there are proactive measures companies can take to avoid costly litigation and ruining their public image.  First and most importantly hiring managers should base their decisions on an individual’s skills and job qualifications and not merely on information obtained from social media websites.  Secondly, companies should ensure they are recruiting from a large and diverse population group otherwise they could be disproportionately screening out other classes of people potentially causing disparate impact. In other words, they should ask themselves, “What is the population I’m using?” They should be using several recruiting platforms and reaching out to a broad applicant base.  In addition, in order to reduce discrimination claims, organizations can put social media recruiting practices and procedures into place.  Basically, they should develop a clear employee social media recruitment and hiring process, specifically for Facebook, LinkedIn or Twitter.

Other proactive measures that can be implemented to avoid costly litigation and minimize risk are accurate record keeping of each on-line applicant and providing all recruits with an accurate job description. Using social media in a fair and objective manner can be challenging for some.  And in some cases, the mere use of technology during the talent acquisition process poses a risk.  For example, “in Gaskell v. Univ. of Kentucky, No. CIV.A.09-244-KSF, 2010 WL 4867630 (E.D. Ky. Nov. 3, 2010) the plaintiff was rejected for employment as a scientist after another employee circulated an email detailing the plaintiff’s religious views – which were visible on the plaintiff’s personal website – to members of the hiring committee. The Court denied the University’s motion for summary judgment on plaintiff’s Title VII claims of religious discrimination, finding that the plaintiff raised a triable issue of fact as to whether his religious beliefs were a motivating factor in the University’s decision not to hire him….. the mere fact that the employer accessed the information may infer improper motive.”  In other words, it is never a good idea for an employer to know, share or seek out “protected class information.”  To avoid similar issues, setting a clear and specific standard for social media usage is one of the best things an organization can do. Businesses should also remember to screen candidates using objective, job relevant criteria in order to reduce the desire of an aggrieved individual to file a lawsuit.

     According to the US EEOC site, “in order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred:

1. the employer has acted to fill a particular position;
2. the individual has followed the employer's standard procedures for submitting applications; and
3. the individual has indicated an interest in the particular position.”

         When reference checks are used during the application process, they should be job related and show proof of validity. For example, criminal background checks are neutral and some crimes may disqualify people, but how long should the crime screen them out? Is a crime that happened twenty years ago job related? Credit checks should also show job relatedness as they tend to cause disparate impact for some groups of applicants. Therefore, in order to avoid further risks based on background data and reference check information, other measures can be taken. First, relate any background information obtained to the job in question and second, show proof that the data is predictive of job success.

       In conclusion, organizations may not be able to avoid lawsuits all together, but they can work hard to avoid them. If they are proactive and genuinely recruit from diverse groups they can potentially avoid litigation. Furthermore, organizations should be honest and truthful in all their recruitment, selection and hiring decisions when social media and technology are used. Decisions should not be based on any protected class criteria rather knowledge, skills and abilities should be why someone is selected. Because when applicants feel like selection methods were fair, they are least likely to pursue a lawsuit when they are not selected.

 References

Phillips, J. & Gully, S., (2012). Strategic Staffing, Prentice Hall publishing

The U.S. Equal Employment Opportunity Commission (March 2008). Questions and Answers: Definition of "Job Applicant" for Internet and Related Electronic Technologies, Retrieved from, http://www.eeoc.gov/policy/docs/qanda-ugesp.html

Morgan, H., & Davis, F., (March 2013) SOCIAL MEDIA AND EMPLOYMENT LAW SUMMARY OF KEY CASES AND LEGAL ISSUES, Retrieved from http://www.americanbar.org/content/dam/aba/events/labor_law/2013/04/aba_national_symposiumontechnologyinlaboremploymentlaw/10_socialmedia.authcheckdam.pdf

   Lesson 03 Long Essay Drop Box (50 pts.)   

Instructors Comments:  Really well done work! You answered the question completely and clearly. Your use of outside sources adds a lot to your work. Hopefully you can see how much work organizations in the US need to do to understand the social media world and how using it puts them at risk. I appreciate your points of view as well!  Grade: 49pts (98%)