Social Media and Recruiting - Legal Considerations for Every Employer. Renee Jackson - an employment attorney from Nixon Peabody - discusses the key legal issues to consider when leveraging social media for your recruiting efforts.

1. Recruitment Marketing Boot Camp Social Media and Hiring: Legal Considerations for Every Employer

3. Quick Intros

4. Webinar Topics

5. Social Recruiting: Stats, Trends & Opportunities

6. Opportunities & Issues using Social Media

7. Understanding the Legal Risks

8. Creating and Applying a Policy

9. Summarize Take Aways

10. Q&A

12. 4 Today’s Guest Speaker Renee M. Jackson, Associate, Labor and Employment Nixon Peabody LLP - Boston Renee Jackson represents employers in all areas of labor and employment law, focusing primarily on employment counseling and litigation. She defends employers against allegations of discrimination and harassment in both state and federal courts, and at agencies such as the Massachusetts Commission Against Discrimination and the EEOC. Renee counsels both domestic and international employers on the various employment law issues they face in the United States, including restrictive covenants, wage and hour issues, workplace policies, discrimination, reductions in force, employee discipline, all aspects of hiring, and the use of social media in the workplace. Renee also has experience with traditional labor relations, employee benefits, and general civil litigation.

13. 5 Understanding Today’s Social Recruiting Strategies

14. 6 Go Beyond Job Boards – What Changed? Monthly Unique Visitors (US Only) Monthly stats from compete.com & ComScore Media Metrics for July 2011.

15. 7 Where Are Passive Candidates? Statistics and graphics from LinkedIn Recruiting Solutions White Paper, The Job Seeking Status of the Fully Employed: authored by Lou Adler Dec 2010.

16. 8 What are Your Peers Doing in Social Recruiting?

17. 9 Leveraging Social Networks hits Critical Mass Jobvite’s The State of Social Recruiting Survey - 2011

18. 10 Innovate: Use New Channels in Smart Ways Build a New Recruitment Marketing Mix… “It will be more important to use a variety of marketing tools, including targeted marketing, Twitter, and Facebook, as well as LinkedIn, to interest more people in learning about your organization and opportunities.” Kevin Wheeler in ERE on 1.3.11

20. BUT: employment laws/concepts and common sense provide guidance on restrictions, permissions, and pitfalls

21. SUMMARY: social media is a useful tool to source and recruit candidates, but it should be used as part of a larger recruiting strategy/approach

22. It only takes one creative plaintiff (or plaintiff’s attorney)

24. Targeting by age, race, gender, sexual orientation, etc.

25. Anti-discrimination statutes

26. Affirmative action concepts

27. Targeting by current or former employer

28. Inducing breach of non-competition agreement

29. Unfair business practices

30. Tips to minimize liability exposure:

31. Use social media as part of larger “marketing mix”:

32. traditional/new media mix

33. in-person networking events

34. job fairs

35. referrals

36. Don’t get too specific with advertisements

37. Use a series of targeted advertisements12

39. Easy to learn protected class information of “fans”

40. Keep this in mind when a “fan” becomes an applicant

41. Be prepared to engage in public forum with:

42. Former employees (disgruntled or otherwise)

43. Current employees (same)

44. Applicants (qualified and unqualified)

45. Be prepared to answer questions, respond to comments, take down content

46. Must set expectations and guidelines for your own employees who contribute content to or manage that page13

48. Do you have the resources to contribute content, monitor, and respond?

49. Who will provide and manage content?

50. Human resources

51. Marketing

52. Company should set up accounts, maintain password, direct content

53. Employees are contributing content on behalf of the Company

54. Set guidelines and expectations for:

55. Posting of images

56. Linking to external sites

57. Non-posting of confidential, proprietary, defamatory content

58. Engaging in discussions, responding to negative comments14

60. An applicant’s social media “issue” with his or her former employer might become your problem after you hire that individual

61. Might not be their network or contacts

62. Ownership and portability concerns

63. Non-competition and non-solicitation concerns

64. Connecting with professional contacts via LinkedIn could be a violation of a former employee’s non-solicitation provision

65. New employer could find itself with a new employee embroiled in litigation, or worse, on the receiving end of a claim for tortuous interference with contract (aiding/abetting breach of restrictive covenant)

66. Don’t ignore social media when analyzing whether to hire an applicant with a non-competition agreement15

68. Positive and negative attributes, contributions, etc.

69. Community involvement

70. Publications

71. Achievements and awards

72. Professional and personal interests

73. Writing/communications skills

74. Illegal drug use

75. Negative feelings about previous employers

77. Protected class status

78. Federally protected classes:

79. Title VII: race, sex, color, religion, national origin

80. ADA: disability

81. ADEA: age

82. GINA: genetic information

83. VEVRAA/USERRA: veteran or military status

84. State FEPAs/local ordinances:

85. sexual orientation

86. gender identity

87. familial status

88. Lawful off-duty conduct:

89. smoking17

91. If “Googling” applicants, be consistent and non-discriminatory

92. Who will be screened?

93. When in the hiring process?

94. What information will be sought?

95. How will the information be reviewed and stored?

96. Look only at publicly-available information

97. Don’t use passwords or try to gain access to private or unauthorized pages

98. Don’t ask for usernames and passwords of applicants

99. Don’t friend or connect to applicants only to see more personal information

100. If already connected through recruiting process, consider implications of connecting again via other social media18

102. Discrimination claims – including class claims – may arise from discriminating against an individual or group of individuals based on protected class status during the hiring process

103. Make sure those responsible for hiring know applicable protected classes

104. May be difficult to show non-use of information

105. It may be lawful to use the remaining information found

106. Hiring decision must always be supported by:

107. Legitimate, non-discriminatory reason(s); and

108. Detailed documentation

109. Consult with employment or in-house counsel before making an employment decision based on information found in social media19

111. Understand the legal restrictions

112. Don’t ignore the risks

113. Use social media as part of larger strategy/approach

114. Craft appropriate policies and procedures

115. Be consistent and non-discriminatory

116. Stay current with legal developments

117. Seek guidance from counselDon’t be the test case!

118. Questions & Answers

119. 22 How to Reach us… Contacts – Renee M. Jackson Nixon Peabody LLP 100 Summer Street Boston, MA 02110 617.345.1028 rjackson@nixonpeabody.com Neil Costa HireClix 617.899.1166 neil.costa@hireclix.com