Hey Employment Law “Experts”, You’re Killing My Profession…

Is HR dead?  I say no, but I've got more information related to that question.

The additional information? Employment law "experts" are killing my profession.  You're like the buzzardsYoure killing me picking at the carcass of a not yet dead mule.  Can you at least wait until the animal is dead?

Oh, I forgot.  You only care about promoting your little section of the world, which is risk management from a legal perspective.  In the meantime, you scare, intimidate and generally freeze the average HR person from adopting tools that can help them do their jobs better, get more respect and generally free themselves from the stereotype that they're nothing more than advanced secretaries paid to say "no".

My profession deserves better than you.  Way better.

Why the rant?  I cringe when employment law experts wax poetic about the dangers of anything, like those included in this article on the dangers of using social media to recruit.

Dude, didn't you hear?  You are sooooo going to get sued. These lawyers quoted by Workforce Recruiting say so:

"Some employers now rely heavily or even exclusively on Twitter or LinkedIn to fill open positions. While this approach may create short-term cost savings and new efficiencies, it may also skew applicant pools and trigger discrimination lawsuits.

“Networking sites, including Twitter, exclude whole populations,” says Jessica Roe, managing partner, Bernick, Lifson, Greenstein, Greene & Liszt, P.A. in Minneapolis. “We are going to end up with a very homogenous workforce. The social networks represent limited social groups and very small labor pools. It’s an enormous issue.” 

According to the latest data from Quantcast, only 5 percent of LinkedIn users are black and only 2 percent are Hispanic."

Of course, finding diverse candidates has always been a problem, and HR pros have always had to resort to targeted recruiting to fulfill their needs in this area. That's the issue that requires specific and targeted recruiting whether you're using social media or not – all the OFFCP wants to know is what you did from a "Good Faith Efforts" standpoint to make sure you had diverse candidates.  But wait!  That's not the only issue according to these employment law experts:

"When sourcing is complete and recruiters move into the selection phase, using social networks to screen candidates generates additional legal risks.  “The use of the Internet to screen candidates exposes recruiters to information on individuals who are members of groups protected under federal law,” Mollica notes.
Some of the information recruiters gain from Facebook or MySpace pages, such as race and gender identification, would normally be available on applications or in interviews.
“But identifiers that might not normally be apparent, such as religion, pregnancy, age and sexual orientation, may be revealed on social networking sites,” Mollica notes. “The risk is that visiting Facebook or MySpace pages or even Googling candidates may reveal information that no employer should have in a properly constructed application or interview.”
Consequently, recruiters must think carefully about what they may find before they troll social networking sites."

Here's the issue with this kind of advice.  There's still a sizable percentage of HR pros out there who are risk adverse to their own detriment, and slow on the uptake to use new tools, especially those involving technology.  So, they read cautionary tales like this and it reinforces the laziness at times, with the rationalization going something like this: "Hey, I've read several places that I can get sued for using those tools".

So they keep posting to Monster for their recruiting needs and never develop connections in their geographic or professional communities of interest that would help them exceed the expectation of those they serve.  They refuse to google candidates, and apart from the protected identifiers outlined above, they miss all the signs that someone is fantastic (or a freak), which means the talent they do get is average.

PS – your CEO wants you to google candidates.  He doesn't like freaks.

They could have done better, had they only had the courage to break out and use the tools.

But the lawyers told them they couldn't.  And Workforce Recruiting is simply feeding the system what it wants to hear – after all, most HR pros want to hear this – that means they don't have to put in the effort – Workforce Recruiting is merely giving the market what it wants.

HR deserves better, and it deserves the full truth from employment law experts.  Listen to lawyers, but don't allow them to scare you away from tools that can help. 

It's sad.

FOT Background Check

Kris Dunn
 Kris Dunn is Chief Human Resources Officer at Kinetix and a blogger at The HR Capitalist and the Founder and Executive Editor of Fistful of Talent. That makes him a career VP of HR, a blogger, a dad and a hoops junkie, the order of which changes based on his mood. Tweet him @kris_dunn. Oh, and in case you hadn't heard the good word, he's also jumped into the RPO game as part owner of a rising shop out of ATL, Kinetix. Not your mama's recruiting process outsourcing, that's for sure... check 'em out.


  1. Amazingly frank (and good) advice!

  2. Kris:
    Lawyers work on fear. It makes for more business for them. Many consultants do the same thing. And, let’s be honest, so do many HR departments. We say “You can’t do that. Period.” Instead, we should be saying “What do we want to accomplish and what is the best way we can get there.” Generally managers don’t want to discriminate they want the best employee. HR has the job of finding the tools and negotiating the landmines to accomplish that. On the occasion where you have a manager that wants to discriminate then you can pull out your “cop” uniform and stop the behavior.

  3. Great, thanks. Read the legal stuff and thought ‘here we go again’ — after a lot of years in HR I have been down this road too many times on too many topics. Yes we do need to help keep our risks down but we do that, as Michael says above, by understanding what the goal is and figuring out how best to achieve it. And when needed we do it by hiring the best employment lawyers – the ones who are oriented to helping their clients achieve their goals and advise on potential risks and risk management first, rather than seeing a lawsuit under every tweet.

  4. Meet the “Preventer” from my 7 HR typologies model!
    The Preventer is the shadowy version of the Professional. Believes role is to keep the business on track by preventing anything bad from take place. Spends so much time being reactive and living in fear of disaster that eventually the organization declines and becomes unhealthy.
    Seven types of Human Resources Practitioner
    Rockstar – drives their organization to new heights. Visible leadership with positive impact on culture and business bottom-line.
    Expert – brings a new level of knowledge and success to an existing organization. Leads incremental improvement of already successful business practices and culture. Helps the organization strive for the next level.
    Specialist – helps a successful organization stay that way through a very specialized knowledge base. Drives improvements in a small portion of the business or the HR function. (Many Recruiters fall into this grouping! – the good ones that is…)
    Professional – competently ensures the business stays on track. Does little to provoke change or drive incremental improvements, but keeps the organization on an even keel.
    Preventer – the shadowy version of the Professional. Believes role is to keep the business on track by preventing anything bad from take place. Spends so much time being reactive and living in fear of disaster that eventually the organization declines and becomes unhealthy.
    Placeholder – keeps a chair warm for as long as possible. We all know one.
    Victim – accepts the traditional view of HR as a lesser function wholeheartedly and remains steadfastly ineffective in their role due to “circumstances beyond their control”.

  5. Neena Gupta says:

    I am a lawyer, but I don’t subscribe to the “don’t do anything new, because you can be sued” theory of advice. In fact, I believe that checking a candidate’s internet personal is a useful background check. The best indicator of future performance is past performance. A candidate with a record of vulgar, intemperate, racist, or thoughtless commentary is someone that I don’t want to hire to represent my company. On the contrary, a candidate who has a record of making thoughtful and well-argued contributions on a blog site is someone who, I hope, will continue in this vein.
    Relying just on the interview to determine a person’s true nature is like marrying someone after the first blind date!

  6. Pat says:

    I read the article and thought, “Oh yeah, adverse impact – I hadn’t considered that”. It did not make me fear using the tool, just made me aware of one of the implications of doing so.

  7. Can’t say I agree with you. Recruiting using social media is just one tool in an entire toolkit, but just like if all you have is a hammer everything starts to look like a nail, there are a whole lot of folks relying too heavily on ONLY social media to accomplish their goals.
    An employment practices lawsuit can cost six figures to defend and win. Maybe that’s not a serious matter to the middle-level management in which HR directors are frequently found, but to CFO’s and corporate boards (and shareholders) that can be a bigger deal, and caution is not a bad thing.
    This economy and the trend in the law to be more employee-friendly (with more to come from this administration and congress) has resulted in an uptick in claims, and you are kidding yourself if you decide to demonize lawyers to justify slipshod HR tactics.
    Frankly, you sound not a little like some of the clients I occasionally have to ‘rescue.’

  8. Jenny says:

    Great article! I too read the Workforce article and groaned. Just as we are convincing our team to use more tools and engage with candidates here comes a traffic cop with a speeding ticket.
    It is all about understanding the risks and making decisions that move the organization forward. HR’s role is to ensure a balance is achieved in our recruiting activities using all the tools available because our clients want the best candidates.

  9. Ian Jones says:

    If I ever get in trouble with the law, remind me to not hire Jessica Roe. I don’t know that there is one statement in her quote that is close to being accurate or defensible.
    No business “exclusively” using LinkedIn or Twitter for sourcing will exist very long. It’s bad strategy. Even LinkedIn advertises outside of LinkedIn to fill open positions.
    Recruiting and HR have little or no impact how homogeneous or non-homogeneous the overall workforce is. At a company level, yes, but the make up of the overall workforce is what it is, Recruiting just picks from the workforce those candidates who best fit their company’s needs.
    And maybe in the full article, she provides some context to her Quantcast stats about LinkedIn, but as stand alone statistics her numbers on minority usage of LinkedIn are meaningless. Is the ethnic make up LinkedIn that much different from say candidates on Monster or The Ladders?
    I’d expect more research and facts from a lawyer.
    BTW – I get the Sandlot reference, but what’s with the S’more in the picture?

  10. Puf says:

    This post gets a full on mother f-ing amen!

  11. I differ with the comment that “…finding diverse candidates has always been a problem…” Searching for the skill and focusing specifically on the skill has always brought me a strong, diverse pool of candidates.

  12. Steve Levy says:

    Hey Kris, stop referring to those in HR who are “risk adverse to their own detriment” as Pros (although they probably refer to themselves as Strategic Business Partners).
    Wouldn’t you like to see Glen J. in HR? Now that might loosen up a cobweb or two…

  13. Norm says:

    Any HR department can use any online tool or social network searches, as long as you prove it is justifiable and the process is made part of your hiring procedures/policy, and at the appropriate time during the process. On review, most cases where companies get tagged for this type of activity appear to usually involve individual persons doing it ‘on the side’ without company knowledge and/or approval.

  14. Joshua Letourneau says:

    Line of the week:
    “PS – your CEO wants you to google candidates. He doesn’t like freaks.”
    That’s classic! 🙂 Sometimes it’s simply remembering a line like that that helps us keep things (like fear-mongering) in perspective. Look, social networking sure isn’t going anywhere – my stance has always been that great recruiters use SM to enhance relationships, not replace them. It takes a village of channels to raise a candidate into an employee 🙂
    I just saw something this morning about a new service called “DateCheck” (from Intellius) that will allow people to [mobile] check-up on their potential dates. Things searchable will be not only their social networking presence/personas, but also their criminal record, in addition to any property they own. This last part is listed in a commercial where a female is using the application to calculate her potential date’s net worth!
    I’m not kidding. Check this out at commercial at 1:16: “If he’s still looking good, it’s time to look inside the wallet.”
    Man, are we Americans or what??? Jeez, I thought going from a 8BR/4BA house to a 4BR/2BA house is a smart financial move . . . but according to the Net Worth check, we’re in bad shape! 🙂 Good thing I have a fiance 🙂

  15. Joshua Letourneau says:
  16. Mike Coffey says:

    Anyone who has been through an OFCCP audit or defended an employment discrimination claim recognizes that the advice in the Workforce Management article is on target. On the flip side, though, I agree that too many HR departments are too-risk averse and take legal cautions as gospel.
    The government and juries will look at the composition of your applicant pool and your outreach efforts to traditionally disenfranchised populations. You’d better be ready to defend your practices, whatever they are. Identifying and sourcing candidates through social media is great IF your pool of candidates is sufficiently diverse. If not, you better be reaching out to other recruitment sources (ethnic chambers of commerce, traditionally-minority institutions, groups assisting older workers or veterans transition to new jobs, etc.) to at least try to identify qualified candidates. Otherwise, you are painting a target on your back – not to mention potentially excluding some extremely qualified candidates to whom you may not have been exposed otherwise. But by all means, use social media (particularly professionally-orient social media like LinkedIn) to identify potential candidates.
    Once an individual has formally expressed interest in a position (ugh, the old quandry about when in your organization an interested party becomes an applicant) the use of social media should be extremely cautious. Using a candidate’s personal blog or facebook page to evaluate their freak-factor is lazy and would be hard to defend against discrimination claims. The EEOC’s E-RACE initiative is targeting these sorts of unvalidated selection procedures.
    I’m told that LinkedIn’s Recruiter platform has a means of eliminating photos and other potentially discriminatory information from information received by recruiters. That’s smart. It protects the recruiter from claims of bias (intentional or unintentional).
    And while the FOT authors are very professional and deliberative recruiters who will do whatever is necessary to land the best talent for their firms, I’ve known some recruiters and many hiring managers for whom the first impression is as far as they ever get. If that first impression is a five-year-old picture of the candidate doing something stupid in college posted on flickr.com or tweetpic by someone else, that otherwise qualified candidate is out of the game and everyone loses.
    The best advice I have for employers who believe that their employees’ online presence is job-relevant, need-to-know information is to create a firewall between the individual conducting the “social-media background check” and all hiring authorities. The person conducting the research should have clear guidelines about what information would be relevant to the position for which the candidate is being considered. Any potentially relevant information should be shared with a neutral member of management who can assess the information fairly without risking prejudicing the hiring manager prematurely. This reviewing authority might be a senior member of HR, Security, Risk Management, Legal, or perhaps even someone in the chain of command above the hiring manager. In some cases, your background screening firm might provide this service with a strict understanding of what will and will not be reported. I know that seems a lot more complex than just googling candidates because your CEO “doesn’t like freaks,” but I’ll bet he doesn’t like all the lost productivity that comes from employee relations headaches and lawsuits, either.
    (Also, Date Check is an insanely bad idea! See why at http://ping.fm/8V3nK)

  17. BryanB says:

    The helpful comments in the article were more than drowned out by–as you point out–by the overall tone of fear. Fear is, I would agree, a greater threat to HR effectiveness than liability.

  18. karenm says:

    Today, Richard N. Landers A respondent on another post on fistful of talent yesterday said the following —
    ” Just because Candidate A has a picture of binge drinking and Candidate B doesn’t, doesn’t mean that Candidate B doesn’t binge drink. They may just be better at hiding it. By taking a Facebook hiring approach, you may just be picking whoever can hide their past better. Not to mention the whole relevance issue: do you really think that out-of-work drinking is related to job performance?”
    That short comments spoke Volumes – How do you know who is a freak versus who isn’t?
    It is so easy To have a gut reaction to images on the internet,and to make a subjective judgment is a human reaction that unfortunately many of us are unable to conquer, even if we try to deny it ourselves.
    Would it not be better for us to recognize this often valuable information not to be so much as fear driven, but, as an education tool to better serve ourselves as well as our communities in opening our recruiting to more diverse avenues? Allowing for more creativity, rather than utilizing the same tools that our very competitors are using over and over again, and gaining the same results?
    As was mentioned, there are some really smart folks at FOT – unfortunately, in our industry, there are too many who really do need to hear this information, and would be better off just hearing a firm NO, just don’t go there..

  19. Steve Parks says:

    if we knew the amount of energy and resources that are wasted ever year in the USA by worrying about race, gender, religion, and (sometimes) age, the figure would be staggering. it’s amazing that anything gets done at all. no wonder nobody wants to build anything here anymore.

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