In today’s internet-driven world, employers have never had more options from which to recruit new hires. Sites like Zip Recruiter, Monster.com, and Career Builder specialize in talent acquisition, serving as stand-alone classified pages of sorts. Employers also can utilize ever-present social media channels, like Facebook and LinkedIn, to find the best candidate for a position. The old rules of hiring, however, still apply even to these modern recruiting avenues.

Recently, the Communications Workers of America (“CWA”) filed a class action lawsuit against Amazon, T-Mobile, Cox Communications, and Cox Media group alleging age discrimination in their Facebook ads. Specifically, the complaint alleges these employers, and many others, have adjusted the settings on their job advertisements to target potential employees under 40. Furthermore, Facebook has a feature that allows the advertiser to see why an individual saw the specific add (i.e., did he or she meet the targeting criteria for the ad).

This suit poses many interesting questions. First, does advertising on Facebook and other social media sites alone mean the pool from which employers are pulling candidates skews younger, or is social media so ubiquitous that it does not make a difference?  If the ubiquity of social media means it does not create discrimination issues, then can employers engage in targeted advertising?  In other words, are there non-discriminatory criteria employers can use to take advantage of social media’s wealth of built-in information?  Can they create ads that will reach those best qualified to apply versus creating a general ad that may flood their HR team with wholly unqualified applicants?

Another interesting question will be how social media differs from traditional advertising. In an earlier era, employers could similarly target younger applicants by selecting when and where they advertise. For example, an employer could take out an ad in a magazine it knows is popular among the age 18-35 demographic. Or a company could advertise a job opening during a television show popular with the same section of the population. Is advertising through targeted Facebook ads truly different simply because there is written proof the employer selected an age range?

These are all very complex questions that do not have an immediate answer. Employers, however, always need to be cognizant of how and to whom they focus their job-opening advertisements so as not to run afoul of the various anti-discrimination laws – or even draw unwanted attention from plaintiff’s lawyers or labor unions. We are happy to advise and assist in creating hiring processes and policies that will both protect your business and help you find the best candidates for your positions.

The California Legislature made headlines yesterday by passing legislation that prohibits employers from demanding the social media usernames or passwords of current employees and applicants.  The bill also prevents employers from requiring employees or candidates to log in to social media in the presence of the employer (i.e., the employee’s supervisor, or the interviewer, or a human resources manager – you get the point). Continue Reading Password Protection: State Style

Over a year ago, our colleagues at the Information Intersection blog warned that employers should think twice before using websites such as Spokeo.com, which are aggregators of personal information collected from online sources, including social media.  They warned that:

…the information available through some of these sites might be incomplete, inaccurate or dated…The reality is that most online information brokers, in their current versions, are not designed to be used for employment screening purposes.  They typically do not meet or even purport to meet the strict rules that apply to pre-employment screening databases. Continue Reading Is An Online Search A Background Check For FCRA?

Two weeks ago, we posted on how employers viewing employees’ or job applicants’ Facebook pages could violate the Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from obtaining or using certain types of genetic information.  We didn’t know the issue of employers viewing applicants’ Facebook pages — and particularly requiring their passwords — was about to BLOW UP.

Since our post, the issue has been the subject of Congressional hearings, proposed legislation, a statement by Facebook, and lots of articles, blogs and tweets.  Many have pointed out that requiring a Facebook password (1) may be illegal, (2) is an invasion of privacy, and (3) gets employers involved in issues they usually seek to avoid.  While these points are true (and are briefly explained below), the real question is:  Does demanding a Facebook password really serve an employer’s best interests?  Put simply, is it a good idea? Continue Reading Who Said Demanding Facebook Passwords Is A Good Idea?

Online social media presents great rewards – and potential risks – for employers.  With more than 500 million active users on Facebook alone, there is no question that a large percentage of employees in every workforce use some form of online social networking.  Even when information on social media networks is not publicly available (such as when employees use “friends only” privacy settings in a social media network such as Facebook), employees often grant access to (“friend”) their supervisors, many of whom also use the same social media.  Likewise, there is no doubt that social media use goes on during work hours and at work – even where employers takes steps to restrict this behavior.  Continue Reading Does Federal Genetic Privacy Law Prohibit Employers from Monitoring their Employees on Facebook?