Jottings By An Employer's Lawyer

Thursday, March 18, 2010

Social Media and Hiring -- Interesting Data, But So What?

Jon Hyman at Ohio Employer's Law Blog has a great post on a recent survey conducted for Microsoft on how employers world wide are using internet research in making hiring decisions, 70% of hiring managers report rejecting candidates following internet searches.

A detailed powerpoint has the January 2010 report prepared by Cross-Tab Marketing Services for a Microsoft division. 

The points from the Executive Summary of impact on professional life are fairly telling (my comments in red):
  • Nationality plays key role in determining whether online content will harm reputations.  
    • It's not clear if this is the nationality of the manager (which it could be given the global nature of the study) or the candidate. Obviously, if it is the latter, it is a huge red flag from an employment law standpoint.
  • Companies have formal policies for checking online reputational data, but male recruiters are more likely to check - except in France. 
    • I would be curious if those formal processes meant written. The 75% number of U.S. employers that said it was "part of their organizational process" sounds high to me. And what is it about males? Or the French for that matter.
  • Recruiters typically conduct deeper searches than most consumers are aware of, and feel justified in doing so.
    • Hiring may be the most important decision that a company makes and so it does not surprise me that employers want to know as much information as they can about potential employees. Hiring is important not only to the general success of a company, but is also an important factor in mitigating employment law litigation.  I think most experienced management side employment lawyers will agree that most "wrongful termination" cases are really cases of "bad hiring."
  • Not all online content is true – but candidates may be rejected nonetheless.
    •  I certainly don't doubt the former, nor really the latter, but when you look at the reasons that such data leads to rejection (see below) I am not sure the two are necessarily connected. Still, any time an employer is acting on false information it is not good.
  • Recruiters say they tell candidates if online content factored into their rejection, but consumers do not seem to be hearing it.
    • I would be surprised if is a very clear message.
  • Good online reputations matter to recruiters.
    • Duh! (although I would not have answered that way a year ago.)
There are also big differences in the use of such data. Worldwide 25% of recruiters do such checks "all the time", in the U.S. the "all the time" number is 44%, with 70% having rejected a candidate based on such a check compared to 14% for the French.

One interesting thing is the wide variety of sites that U.S. recruiters report they are checking:
  • Search engines (78%)
  • Virtual worlds sites (32%)
  • Online gaming sites (27%)
  • Classifieds/Auction sites (25%)
  • Social networking sites (63%)
  • Personal websites (48%)
  • Photo/video sharing websites (59%)
  • Blogs (46%)
  • Online forums/communities (34%)
  • News sharing sites (41%)
And probably the most important set of  U.S. data from an employment law standpoint,  reasons for rejection:
  • Inappropriate comments/text written by the candidate (56%)
  • Unsuitable photos/videos/information (55%)
  • Concerns about the candidate's lifestyle (58%)
  • Comments criticizing previous employers/co-workers/clients (40%)
  • Inappropriate comments/text written by friends/relatives (43%)
  • Inappropriate comments/text written by colleagues/work acquaintances (40%)
  • Groups/Networks the candidate was a member of (35%)
  • Discovered that information the candidate shared was false (30%)
  • Poor communication skills displayed online (27%)
  • Concern about the candidates financial background (16%)
Jon quotes himself to make a good point about the use of this data:
I have another problem with HR departments willy-nilly performing internet searches on job applicants – the risk that such a search will disclose protected information such as age, sex, race, or medical information.
I think that is a legitimate concern. I also think it may work against hiring activists or what Tom Peters calls "mavericks" in his latest book, The Little Big Things," which at least he would say is a bad thing.

A couple of other points on a post that is now way too long. If ENDA passes, which would extend anti-discrimination protection to sexual orientation, I think the searches could be even more problematic.

Still to answer the question I posed in the headline, so what?

I think this data should be a very big deal to those seeking work.

For employers? This may change, but the fact is, in my now 35 years of doing this, I can probably count the number of cases that I have handled based on failure to hire on the fingers of my two hands and it certainly would not exceed my fingers and toes.

Still just because it has been that way in the past doesn't mean it will in the future, and you can be sure data like this will be making for some interesting inquiries at depositions in the future.

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