A light touch on some of the Legal ramifications of Social Media Recruiting and ways an Employer can mitigate some of said Risk.

1. Employer Risk of
Social Media
Recruiting
Kable Nunnally, MBA

2. Social Media platforms
● Facebook
● Twitter
● LinkedIn
● Vine
● Pinterest
● YouTube

3. Social Media - monthly users
● Facebook - 1.28 billion
o 63% visit once a day, 40% twice a day
● Twitter - 255 million
o 46% visit once a day
● LinkedIn - 76 million
● Pinterest - 60 million Quantcast.com

4. Social Media Recruiter Usage
Similarities:
● Job postings
● Vetting candidates
Jobvite - Social Recruiting
78 % of Recruiters have made a
hire using Social Media

5. Legal Risks for Employers
● Discrimination
● Negligent Hiring
● Disparate Impact

6. Risk cont’d - Discrimination
Social Networking sites contains info covered
under Title VII
- Title VII of the Civil Rights Act of 1964 is a federal law that prohibits
employers from discriminating against employees on the basis of sex, race,
color, national origin, and religion. It generally applies to employers with 15
or more employees, including federal, state, and local governments. Title VII
also applies to private and public colleges and universities, employment
agencies, and labor organizations.

7. Discrimination case law examples
EEOC v. Choctaw Transp. Co., Inc., 1:10-cv-01248-JDB-egb (W.D. Tenn. Jan. 19, 2012) In January 2012, a marine
construction and transportation company located in Dyersburg, Tenn., will pay an African-American job applicant
$75,000 to settle a racial discrimination lawsuit filed by the EEOC. According to the EEOC's lawsuit, the company
refused to hire a Black job applicant for a deckhand position because of his race in violation of Title VII. In addition to
the monetary relief, a three-year consent decree requires the company to use its best efforts to fill up to 25
percent of available positions with African-Americans.
EEOC v. MWR Enterprises Inc., II, C.A. No. 3:10-cv-00901 (M.D. Tenn. Feb. 23, 2012) In February 2012, the owners
of Piggly Wiggly supermarkets in Hartsville and Lafayette, Tenn., agreed to pay $40,000 to settle a race and gender
discrimination lawsuit filed by the EEOC. In its lawsuit, the EEOC asserted that the Piggly Wiggly locations owned by
MWR Enterprises Inc. II violated federal law by maintaining policies and practices that intentionally failed to hire African-
Americans because of their race for positions at the company's Piggly Wiggly store in Hartsville and Lafayette. The
EEOC further charged that the company maintained a segregated work force and an established practice of not hiring
males for cashier positions at the same locations. The four-year consent decree also requires Defendant MWR
Enterprises Inc., II, to establish a written policy which provides that all job assignments will be made without
consideration to gender; establish guidelines and procedures for processing employment applications; provide Title VII
training on race and gender discrimination to its managers; meet recordkeeping and reporting requirements; and post a
notice about the lawsuit and settlement at its store locations.

8. Discrimination cont’d
• ADA - Americans with Disabilities Act
• ADEA - Age Discrimination in Employment Act of
1967
• GINA - Genetic Information Nondiscrimination Act of
2008
• VEVRAA – Vietnam Era Veterans Readjustment
Assistance Act of 1974

9. Discrimination - cont’d
Americans with Disabilities Act (ADA)- prohibits discrimination against
people with disabilities in employment, transportation, public accommodation, communications, and
governmental activities.
Age Discrimination in Employment Act of 1967 (ADEA)-
protects certain applicants and employees 40 years of age and older from discrimination on the basis
of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.
The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).
- In Neiman v. Grange Mutual Casualty Co. (C.D. Ill. 4/26/12), the plaintiff claimed that he was
not hired for a position because of his age. The employer argued that it could not have considered the
plaintiff’s age because it had no idea how old he was when it made its decision. The plaintiff, however, argued
that the employer must have been aware of his age because he included the year he graduated from college
on his LinkedIn profile.

10. Discrimination - cont’d
GINA - Genetic Information Nondiscrimination Act of 2008 is
an Act of Congress in the United States designed to prohibit the use of genetic information in health
insurance and employment. The Act prohibits group health plans and health insurers from denying
coverage to a healthy individual or charging that person higher premiums based solely on a genetic
predisposition to developing a disease in the future. The legislation also bars employers from using
individuals' genetic information when making hiring,firing, job placement, or promotion decisions.
EEOC v. Founders Pavilion, Inc., 13-CV-01438 The EEOC charged that Founders Pavilion requested family medical
history as part of its post-offer, pre-employment medical exams of applicants. As part of a five-year consent decree
resolving the suit, Founders Pavilion will provide a fund of $110,400 for distribution to the 138 individuals who were
asked for their genetic information.

11. Negligent Hiring
Employers can be held liable for an employee’s
wrongful acts, if the employer knew or had reason
to know the risk of employing a certain individual.

12. Negligence cont’d
• A furniture company was found liable for $2.5 million for negligent hiring and retention of a
deliveryman who savagely attacked a woman customer in her home. (Tallahassee Furniture Co.,
Inc. v. Harrison)
• A nursing home was found liable for $235,000 for the negligent hiring of an unlicensed nurse with
numerous prior criminal convictions who assaulted an 80-year-old visitor. (Deerings West Nursing
Center v. Scott)
• An employee with a criminal record sexually abused a child; his employer was found liable for
$1.75 million for negligent hiring and retention. (Doe v. MCLO)
• A vacuum cleaner manufacturer was found liable for $45,000 because one of its distributors hired
a door-to-door salesperson with a criminal record who raped a female customer in her home. The
manufacturer should have required its distributors to conduct pre-hiring screening of door-to-door
salespersons to prevent hiring of persons with criminal histories. (McLean v. Kirby Co.)

13. Disparate Impact
A theory of liability that prohibits an employer
from using a facially neutral employment
practice that has an unjustified adverse impact
on members of a protected class. A facially
neutral employment practice is one that does not
appear to be discriminatory on its face; rather it is
one that is discriminatory in its application or
effect.

14. Social media, cont’d.
Pew Research Center’s Internet & American Life Project

15. Disparate Impact cont’d
Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), articulat
ed the disparate impact theory and constructed a model of proof that the plaintiff and
defendant must use in presenting their cases. In Griggs, the employer required a high sc
hool diploma and a passing score on two professionally developed tests. Although the lo
wer courts found no liability because the plaintiff failed to prove that the employer had a
discriminatory motive for the requirements, the Supreme Court reversed the decision.
The Court stated that Title VII "proscribes not only overt discrimination but also
practices that are fair in form, but discriminatory in operation."
In a famous quote, the Court said that the
"absence of discriminatory intent does not redeem employment procedures
or testing mechanisms that operate as 'built in headwinds' for minority groups and
are unrelated to measuring job capacity."

16. Disparate Impact cont’d
Ricci v. DeStefano, 557 U.S. 557 (2009), was a decision by the United States Supreme Court
concerning employment practices by New Haven, Connecticut's fire department. Eighteen city
firefighters, seventeen of which were white and one was Hispanic, brought suit under Title VII of the
Civil Rights Act of 1964 after they had passed the test for promotions to management positions and
the city declined to promote them. New Haven officials invalidated the test results because none of the
black firefighters scored high enough to be considered for the positions. City officials stated that they
feared a lawsuit over the test's disproportionate exclusion of certain racial groups from promotion
under the controversial "disparate impact" theory of liability.
The Supreme Court heard the case on April 22, 2009, and issued its decision on June 29, 2009. The
Court held 5–4 that New Haven's decision to ignore the test results violated Title VII because the city
did not have a "strong basis in evidence" that it would have subjected itself to disparate-impact liability
if it had promoted the white and Hispanic firefighters instead of the black firefighters. Because the
plaintiffs won under their Title VII claim, the Court did not consider the plaintiffs' argument that New
Haven violated the constitutional right to equal protection.

17. How to mitigate risk for Employers
Social Media policy:
Collaborate with Legal, HR, and Management
to adopt a comprehensive policy that covers
recruitment activities

18. Mitigate risk cont’d
Job Descriptions:
• Organization needs to have written, detailed, and
standardized job descriptions that could be used in the
event a candidate alleges discrimination
• Follow the EEOC, FLSA, DOL suggested format

19. Mitigate risk cont’d
Application & Selection process:
• Needs to be part of a larger marketing mix
• Offer the option for candidates to fill out an application
on site via computer or paper
• Designate a non-decision maker to screen applicants
sourced from Social Media and scrub the non-relevant
information before presenting it to the Hiring Manager

20. Risk – Application & Selection cont’d
Interviews:
• Process needs to be consistent
osame questions
osame manner
Pre-employment testing:
• Confirm its intended use
• Make sure it is valid and reliable

21. Risk – Application & Selection cont’d
References:
• have a process
• determine number of references
• previous supervisors are key

22. It is legal to use social media to source and recruit candidates and it can be a
very useful tool but hiring decisions can not hinge soley on any information
considered a “Risk” to your Organization.