A 45 minute presentation to corporate lawyers on dealing with critical risks in the hiring process. Deals mostly with social media and background checks.

1. Social Media and the Hiring Process Dan MichalukApril 12, 2011

2. Social Media and the Hiring Process Background checks The yes/no decision Contracting hot points I can blog on my own time if I want! What do you mean my Facebooking isn’t work?! How – best practices You have a duty to back my lawsuit! What do you mean that was improper?

3. Social Media and Background Checks The yes/no decision Application of privacy legislation matters If it applies, you must meet the applicable standard for colleting personal information If not, weigh utility (a function of validity) versus cost and risk

4. Social Media and Background Checks The yes/no decision – privacy legislation Normal purpose – to confirm a candidate’s suitability for employment Collection must be reasonably necessary for this purpose To get a pass, you must Know the thing you are looking for The thing must generally speak to a conflict with a legitimate business interest (including corporate rep.) or job duties Conduct and record an up-front yes/no assessment on these criteria

5. Social Media and Background Checks Best practices – why important To comply with applicable privacy legislation To reduce the risk of a discrimination claim under human rights legislation

6. Social Media and Background Checks

7. Social Media and Background Checks Best practices Conduct as a true background check – i.e., at last stage in the hiring process. Define what you are looking for. Your criteria should be valid, objective and lawful. Have someone who is not a decision-maker conduct the search.

8. Social Media and Background Checks Best practices Keep a formal record of the search on the hiring file. Confirm identity and other aspects of reports prior to relying on them. Retain the hiring file for 2 to 3 years post decision.

9. Social Media and Background Checks The consent/notification issue Employers may feel checks need to be done without notice to avoid manipulation This is a employee relations and a compliance issue “Publicly available information” exemptions in statute are broad – What is a “a publication”? Seek an opinion on the requirements of applicable privacy legislation

10. Social Media and the Employment Contract First, a contracting philosophy Contract to address “take away rights” and importantrisks Requiring adherence to properly incorporated policies and procedures is the baseline Deal with other risks expressly based on priority Long, complicated employment contracts are ineffective

11. Social Media and the Employment Contract “I can blog on my own time if I want!” Should you make the hire offer conditional? Take that blog down Expressly promise to follow these rules Incorporate conflict of interest policies (and review them in light of social media risk) and internet publication policies Establish a general rule and identify the interests you will protect Safe and harassment free work environment, Ability to perform job responsibilities Corporate reputation

12. Social Media and the Employment Contract “What do you mean my Facebooking isn’t work?!” Define the scope of responsibility or incorporate a job description by reference Establish rule – you must be specifically authorized to communicate on behalf of the company Establish rule – overtime must be authorized Establish rule – overtime must be reported Review IP ownership regarding scope

13. Social Media and the Employment Contract “You have a duty to back my lawsuit!” Indemnification clauses typically fund defences and not claims, but check anyway Employers generally have no duty fund an action to vindicate (personal) reputation The duty to provide a safe and harassment free workplace is different Is this a subject for contract?

14. Social Media and the Employment Contract “What do you Mean that was Improper?” Social media invites conversations, which feel different to employees Employees need to know that publication is not a necessary condition for breach that a publication to friends is a publication A questionable issue to be managed through contract. Better to educate.

15. Social Media and the Hiring Process Dan MichalukApril 12, 2011