Worldwide, 3.2 billion of your closest friends use social media. As social media use has exploded, so has your opportunity to investigate and recruit employees. Not surprisingly, the growth of social media use far exceeds the pace of laws regarding employers, employees, hiring, and recruiting. We’ve all read social media stories that landed a business in a legal quagmire. So, should you avoid social media in the quest for your next hire?

No.

Let’s first explore how companies use social media in the talent acquisition process. Then we’ll navigate around a few landmines that could spell disaster.

What is social media?

Broadly speaking, “social media” allows for the creation and sharing of user-generated content on the web. This can be divided into four main categories:

  1. Social and professional networking (Facebook, LinkedIn)
  2. Blogs and microblogs (a personal blog, Twitter). Content is shared in reverse chronological order, and normally allows public discussion/comments.
  3. Digital media and image sharing (YouTube, Instagram, Vimeo)
  4. Other social media (location-sharing, customer reviews, bookmarking)

Why Social Media?  Attract and Inform.

Don’t be nervous about using social media when recruiting your next hire. Savvy executives understand this: There has NEVER been a more robust landscape to connect with the ideal candidate! They’re using the abundance of the social media world to attract potential Rockstars. How are they doing it?

Companies identify and source potential candidates by announcing open positions on social media. Yes, you can even use targeted advertising to narrow the field of qualified candidates.  What do you target?  Refer to our “ideal candidate profile” and the Rockstar behaviors you identified from Chapter 2 of this Recruit to Win series.

And remember that social media is the place where people . . . socialize! Do you have a recruitment plan that includes networking events, traditional job fairs, and/or an employee referral plan? Use Social media to connect, and invite candidates to meet in person.

Aside from attracting potential talent, you can also use social media to inform YOURSELF and screen out possible misfits for an open position. LinkedIn profiles show professional affiliations, and oftentimes, specific accreditations. If they write or respond to blogs, you can see the candidate’s written communication skills. Social media is an easy place to attract, but also to screen for potential hires. It’s also an easy place to step onto a legal landmine. How do you navigate safely? First, let’s talk about the obvious: Illegal practices. [Sadly, some illegal practices are far from obvious.]

Federal laws prohibit discrimination against any protected class. It is illegal to discriminate on the basis of:

  • Race
  • Color
  • Religion
  • Gender (including pregnancy)
  • National origin and citizenship
  • Age (40 and over)
  • Disability (including perceived disability)
  • Genetic information
  • Veterans, active-duty military service members, or individuals who have applied to the uniformed services.

Beware: Compliance with federal laws does not guarantee your safety! Most states also have their own anti-discrimination laws that expand beyond the above list. Some states, for example, consider sexual orientation, marital status, and smokers (and more) a protected class. Familiarize yourself with local, state, and federal laws to avoid discrimination claims. Better yet—seek the guidance of legal counsel before your next job posting.

Most companies that LOSE discrimination claims are not intentionally discriminating! As you utilize social media to attract more attention to your job openings, you’re also attracting more possibilities for unintentional (though illegal) discrimination. In legal terms, it’s the difference between Disparate Treatment and Disparate Impact. Disparate Treatment intentionally discriminates against a certain protected class. [Limiting a job to only a certain gender, race, age, etc.] Most complaints, however, arise from Disparate Impact: when a neutral-appearing policy or practice actually has a discriminatory impact on a protected class.

“Rightfully nervous, John Doe sat in my office. Seemingly innocuous (in his mind), his recent job posting on social media landed him in my office . . . .”

John Doe (as we renamed her – or is it him?) operates a multi-location restaurant group.  As with most restaurants today, John needed more kitchen staff and his HR Director posted a job announcement on the company Facebook page.  In the announcement, the company asked for “young, hungry” line cooks to apply.  The “hungry” part was clever, especially for recruiting line cooks; but, the inclusion of “young” went too far.  Being young is not a job requirement for preparing ingredients and assembling dishes.  And a much older applicant (older meaning 40 plus years of age older) complained.  With the threat of a lawsuit looming, the owner/operator found himself calling the attorney.

The moral of the story? Discrimination is much more nuanced than most business owners understand. You run your business; let legal counsel protect you from threats beyond your horizon.

LEGAL “FUN-BUSTERS” (AND HOW TO AVOID THEM): LEVERAGING SOCIAL MEDIA LEGALLY

Social media offers a previously-unseen world of potential hires; also a few new pitfalls. What are the biggest risks in the recruiting process? Triggering an employment discrimination claim. Here are a few suggestions to protect your company from a potential lawsuit.

You have a great team in place, and you want more just like them. Naturally, you rely solely on word-of-mouth recommendations to find new candidates. If your workforce is predominantly one class (race, gender, married/single, non-military, etc.), you’re at risk for a discrimination claim. Other protected classes need access to the opportunity. Post job openings in a variety of outlets.

Diligently, carefully, suspiciously proofread your communication for bias against a protected class!  Do not use the terms “he” or “she.” Titles such as “waiter, waitress, host, hostess” can trigger gender discrimination. “Young and energetic” sounds like age discrimination.

EVERY job description should include the fact that you are “an equal opportunity employer.” Non-negotiable.

There are certain exceptions to the discrimination laws we’ve discussed: Bona Fide Occupational Qualifications (BFOQE). Simply put, certain positions and/or companies require employees of a certain class. A religious organization requires ministers of its own faith. Hooters Restaurant doesn’t hire male servers. If you think that your position qualifies for a BFOQ requirement, you MUST be able to unequivocally justify it. This is not a time to skip legal help!

As you scan social media for a qualified applicant, you’ll likely learn about the applicant’s personal life. These details MUST NOT be used in selecting or rejecting an applicant! Suppose that you see online that you and an applicant share a mutual personal interest. Conversely, maybe you respectfully disagree with the candidate’s position on politics/TV series/essential oils/bottled water. Do not broach that subject anywhere in the hiring process. If they feel overlooked—or another candidate learns it was discussed—you are subject to a complaint . . . and you will likely lose.

Targeted ads on social media are legal and effective, but use caution. Specifically:

  • Avoid being so specific that it looks like you’re favoring a certain protected class.
  • Use a few different targeted ads. A company that lists a coding position on Facebook could target an audience within a certain mile radius, and people who list “Coding” as an interest. They could also run a second ad for people with an education in “Engineering.” Avoid ads that target a certain age, gender, economic status, etc.
  • Use social media as a part of your larger recruitment plan. Do not neglect traditional, in-person events.

Do not make a hiring decision based on a candidate’s lack of social media presence (unless it is a requirement for the position, e.g., “Social Media Director”).

Consider a third-party social media background check provider such as Social Intelligence. These companies scan candidates on social media, and remove any information regarding a protected class, or lawful off-duty conduct.

Many state laws dictate that you do not discriminate against “lawful off-duty conduct.” This is best explained by an example. Jane Doe is a potential candidate. You learn that one of her weekend hobbies is shooting at the gun range (lawful and off-duty). One of your employees is morally opposed to guns, so Jane is respectfully declined. In many states, you have discriminated against her.

Note: This is not the law in Georgia, but it’s nonetheless a solid guideline. If you’re a Georgia company hiring employees outside of Georgia, it’s no longer a guideline—it’s the law.

If you need help with your screening plan or to avoid any legal “fun-busters,” contact us at 770-282-8967 or by email at office@inprimelegal.com to schedule a no-obligation consultation.