Recruiters increasingly are finding it easy to use their mobile devices to search for candidates via the Internet.
But experts say they might be entering a legal minefield that could lead to thousands of dollars in fines—if they’re not keeping records on how they search for talent and following U.S. recordkeeping laws prohibiting discrimination.
Regulations from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) require federal contractors and subcontractors to collect information from applicants about the gender, race and ethnicity of each “applicant” for employment.
In 2006, the OFCCP clarified the definition of Internet applicants, requiring contractors to retain records of all Internet-based expressions of interest by individuals in which contractors considered the individual for a particular position.
The sheer number of people applying for jobs online can overwhelm those charged with keeping records. Factor in the use of mobile devices and trying to figure out how to keep records on the devices, many of which have different Internet platforms, and that difficulty could increase, experts warn.
Running afoul of the law isn’t restricted to just the U.S., either. For example, in the U.K., HR must be concerned with the 1998 Data Protection Act, which regulates the protection of personal data.
Proceed with Caution
While some experts say recruiting via mobile devices is the wave of the future, many say recruiters should proceed with caution—particularly if they’re not collecting the same types of data from their mobile device as they would from a web site viewed on a desktop.
Ted Daywalt, president of VetJobs.com, said he sees a lot of recruiters using mobile devices to find candidates, “and I think they’re playing with fire.” Asked if he’d search for talent in this manner he said: “There are enough minefields out there. I don’t need to put one in front of me and jump up and down on it just to see it go off.”
VetJobs, a military job board based in Marietta, Ga., provides OFCCP compliance support.
Daywalt and other experts say recruiters who are mining the web from handheld devices must keep detailed records—and must make sure if they are accepting applicant data that they are doing so on a site that contains the same capabilities and functionalities as a full corporate site.
“With a lot of solutions that are coming out, I worry about some of the compliance issues regarding recordkeeping,” said Jamie Wood, product manager for Peopleclick. She pointed out that a web site viewed from a handheld device might be vastly different from the corporate site viewed on a desktop—and therefore data collected from the two different sites might differ dramatically.
“If you’re running searches on your mobile device to find job seekers, you need to be logging that info,” adds Dr. Lisa Harpe, an industrial organizational psychologist with the Peopleclick Research Institute.
Daywalt agrees. He believes that the OFCCP intends to step up audits—especially since there are more construction contractors now, stemming from an increase in cash attributable to the American Recovery and Reinvestment Act of 2009. He added, “Any time you do a resume search on the Internet, you’ve got to keep a copy of every resume that came back, and not only that—[OFCCP will want to know] what those resumes looked like the day you did the search. This requires unbelievable amounts of storage space and programming [something some mobile devices may not have]. It’s costing people hundreds of millions of dollars—but that’s the law and that’s what everybody’s got to do now.”
Philadelphia labor attorney Eric Meyer of Dilworth Paxson LLP concurs.
“If you’re recruiting applicants … whether you’re running searches or people are submitting resume materials or what have you via mobile phone devices, you need to be mindful of the recordkeeping requirements.”
Peter Gillespie, an employment litigation attorney with the Chicago office of Fisher & Phillips, said HR needs to be careful that “in the context of a federal contractor, when you are selecting a recruiter, you want to be mindful of whether you’re getting resumes and applicants that are reflective of the community around you, and so if a recruiter is really not helpful in providing you with a diverse range of candidates that could prove problematic in the event of an OFCCP desk audit.”
Millions in Fines
Problematic might be an understatement.
In 2008 the OFCCP collected more than $67 million in fines from noncompliant employers—money that was payable to more than 24,000 American workers who alleged employment discrimination. In 2008, the agency quadrupled its staff.
“When you’re going through an audit, you cannot tell the auditor you will provide the requested data in a few days or weeks,” Daywalt said. “You have to have all the data available during the audit.”
What’s more, “you don’t always get notice when those auditors show up,” Daywalt said. “You’ll watch everyone in HR go into a total panic.”
He added, “If you’re a recruiter and you’re not keeping detailed records on this, you are setting yourself up for fines. When the auditor shows up, you have to have the right data, right now, or you have to write a check,” Daywalt said.
Searching candidate’s personal data might be problematic, too, experts said, especially since there are some pieces of information employers should not have about prospective candidates—information that’s often available readily on social networking sites, like their purchasing habits and groups to which they hold membership.
“Basically, if I identify someone who could [be] or is a potential candidate, I have to document everything I’ve found out about them, and I have to document every source,” Daywalt says. “So if I go out to Facebook or LinkedIn and see photos of you—I have to identify that. And it’s starting to scare a lot of people.”
Adds Gillespie, “From an OFCCP perspective, recruiters who rely on data like Amazon wish lists might face a question as to whether screening candidates based off what they have in their wish lists would be considered a nondiscriminatory filtering tool.”
“One thing that was important to us is that we were seeing recruiters using social media as part of their screening process, but [they] were looking at online identities that weren't submitted to them for review by the candidate,” said Bill Fischer, director of the U.K.-based TwitterJobSearch.
“We built the ATS for our Real-Time Jobs App to be compliant with the 1998 Data Protection Act in the U.K., and as such, a job applicant can identify which of their online identities that it wants the recruiter to review as part of the application process,” Fischer said. “There is a record of all social media profiles that the candidate wishes to have considered in their application. This allows … the candidates to benefit from the wealth of information contained in those identities, but it also allows the candidate to control what is submitted as part of their application by providing a clear record of their online application.”
A good approach for employers is simply not to raise these issues, Gillespie said. He added, “one thing an employer needs to provide for OFCCP is some kind of explanation on how they conducted the search and what kind of criteria they were using,” Gillespie said. Employers “need to make sure they’re using tools they can describe and defend in the event of an OFCCP audit and may want to be cautious if a recruiter were using data that was difficult to describe,” he said.
Everyone’s Not on LinkedIn
Keep in mind, too, Daywalt says, “If you’re a recruiter and you’re using Facebook or LinkedIn or any of these social networking sites as a sole source or way to source anybody, you might be opening yourself up to some interesting lawsuits.”
According to estimates from the web metric web site Quantcast, 85 percent of the users on LinkedIn are white; 9 percent are Asian, 3 percent are black, 2 percent are Hispanic and 1 percent identified as other. LinkedIn, however, points out that it does not collect ethnic data. “Our demographics are pretty representative of the professional population, and our audience tends to be more senior and highly educated,” LinkedIn’s senior public relations manager, Krista Canfield, told SHRM Online.
“If you have a service and for whatever reason it is only hitting on one class of candidates, that’s a problem,” Gillespie said. “You’d be hard-pressed to find any one company using one way to recruit,” Canfield concurred.
“So really a best practice for recruiters is to develop a procedure on the front end for collecting demographic information for individuals who qualify as Internet applicants,” Meyer said.
He and other experts say recruiters should be using other means to conduct candidate searches as well.
Use of mobile devices to search for candidates “is really pretty new,” Harpe said.
“Quite often there’s a disconnect between HR and recruiters. This is a call to action for a lot of companies to see if recruiters are using this.”
She said that if companies are hiring recruiters who are using mobile devices to search for candidates, “the client should be holding the vendor responsible for supplying those records.”
Aliah D. Wright is an online editor/manager for SHRM.
Pick the Best of the Bunch, SHRM Online Staffing Management Discipline, April 2009
The Internet Definition of an Applicant: How Practitioners Can Comply With OFCCP, SHRM Research, March 2006
The Perils of Online Recruiting, SHRM Research, October 2000