Technology, Recruiting, and (Gulp!) Lawyers, Part 1

Who is Bob Style?
Robert P. Style is a well-known attorney specializing in the search and placement industry. He is also the Counsel for the National Association of Personnel Services. (email: rstyle@sprynet.com; phone: 215-732-7131)

Why is Drea reposting his legal updates?
Because I can!  And the more recruiters hear and read about what Bob has to say, the better and more educated the recruiting industry will become.  That is a great formula for evolution.

So . . . without further ado:

“Technology, Recruiting, and (Gulp!) Lawyers, Part 1”

You all know better than I how much technological developments have impacted your day to day business practices, mostly for the better, at least I think. What you may not know is how the potential impact of these same technological developments has come to the attention of my profession, and that usually is not for the better.

Let’s look at the impact of technology on the laws applying to your business in three ways:

1. Why so many lawyers believe that using social networks, or maybe more importantly, LinkedIn, may expose you to charges of unlawful discrimination.

2. How to protect yourself against clients who claim they don’t owe you a fee because they found the candidate on a network or job board.

3. How does the fact that anybody can be found anywhere impact your right to stop former employees from using what we always thought were trade secrets – or, for example, the LinkedIn connections they’ve developed for you?

Here’s the usual lawyer’s disclaimer. Any of you who have ever been involved in litigation know what a painfully slow process it can be from time to time. Well, the same is true as to the development of the law relating to the impact of recent technological developments. The lawyers I will be quoting here, as well as I, can only speculate at this time, because it will take a while before appellate court decisions on these subjects are issued. However, this is an area in which you don’t want to set the legal precedent for everyone else, and the point of this exercise is to help you avoid just that.

Let’s get a mini course in Unlawful Discrimination 101 out of the way.  There are two different types of illegal discrimination, both of which may come into play here, depending upon what use you make of social networks. Disparate treatment discrimination is the easiest to spot. I don’t hire you because you are African-American, I pay you less because you are a woman. In essence, I treat you differently because you are a member of a class protected by the law. That is obviously illegal.

Disparate impact discrimination is harder to spot, but equally unlawful. It occurs when I treat everyone the same, but the effect of this is to make it more difficult for members of a protected class to get the job. A classic example is what used to be common for police and fire departments. They wanted someone who possessed physical strength, so they required, for example, that all applicants be at least 5’10” and weighed 160 pounds. Anybody, male or female, who met the height and weight requirements was considered for the position in the same way, and anybody, male or female, who was too short or too skinny was rejected.

What’s the problem with that? The problem is that the rule has the effect, regardless of the employer’s intent, of making it harder for a woman (or Asian) to qualify for the position because they are more likely to fail the height/weight test. This type of discrimination is as unlawful as would be a blanket refusal to hire women for these positions.

You probably don’t get many height and weight requirements in your job orders today, but I know, from telephone calls I receive, that some of you get something like, “I’m tired of my employees not getting to work on time. We’ve got a new rule here at Acme Widgets. From now on, we will only hire people who live within 10 miles of the office. That should eliminate these excuses about traffic jams or snow making it impossible to get here on time.”

Well, what’s the problem with that, since, as far as I know, people who live a long distance from the office are not mentioned as a protected class in the Civil Rights Act? The problem occurs when the area within 10 miles of the office is not exactly diverse (let’s call it Rich White Suburb). Therefore, the rule has the effect of making it more difficult for minorities to get the job, because they are less likely to live in Rich White Suburb. Even if the employer does not discriminate against those few minority group candidates who are Rich White Suburb residents, the rule is unlawful unless it can be justified on the basis of business necessity, which it cannot.

In Part 2, we’ll see how LinkedIn, Twitter, and social web sites (basically Web 2.0 thinking) relates to these issues.