By now, most employers recognize that they shouldn't peek at
the social-media profiles of applicants for all sorts of reasons.
It's sort of like driving past an applicant's house hoping
that you can catch a glimpse of their private life through their
front window. While in most states that might be legal, it's a
pretty stupid idea.
Besides being generally creepy, you'd probably be very
embarrassed if you got caught; and most importantly, you might
learn things about your applicant that you'd rather not have
known at the time you are making the hiring decision. After all, a
rejected applicant won't have a successful discrimination claim
if you can prove you didn't even know they were in a particular
protected class, but if the applicant can show that you peeked at
their Instagram profile and learned they were in that class,
it's a whole different story.
But lately employers are turning the tables by using the hottest
social-media app on the market today, Instagram, to directly
recruit candidates. And while this strategy is a smart way to reach
out to millions of potential applicants and build a strong brand,
there are still a few employment law issues to take into
consideration.
First things first. While most readers are familiar with
social-media platforms – 74% of all internet users are on
some form of social media or another – don't be alarmed
if you haven't heard of or used or don't quite understand
Instagram. The easiest way to learn about it is probably to ask
your teenager or grandchild to show you his or her Instagram feed
on their mobile device. That's because Instagram is heavily
skewed towards the younger generation. Many teenagers and
20-somethings are abandoning or foregoing Facebook altogether in
favor of Instagram, considering Facebook to be the social-media
platform for people their parents' age.
The numbers support this theory – in late 2011, Instagram had
only 10 million users, and by August 2014 that number ballooned to
over 150 million. That astronomical rise is fueled by younger
people: over 90% of Instagram users are under the age of 35,
compared to only about half of Facebook users being in that
Generation Y (and younger) cohort. Several years ago, 42% of
social-medial users said that Facebook was the "most
important" social-media site to them; today that number stands
at only 23%. As of today, an equal number (23%) of social-media
users say that Instagram is the most important social-media
platform for them, and that number is projected to do nothing but
rise in the coming years. You may not know a lot about Instagram,
but your kids sure do.
At its simplest, Instagram is a lot like Facebook but with a few
distinct differences. Once you set up your profile, you can follow
your friends, your favorite celebrities, and those companies you
are interested in, and by doing so you can see what they post; at
the same time you can post to your account as well and those that
follow you will see what you are up to.
But unlike Facebook, Instagram is exclusively a smartphone or
tablet app, more geared towards those that use their mobile devices
for social purposes than for business. And while Facebook allows
you to post written messages, Instagram is designed for pictures.
Users can manipulate the images in a number of interesting and
creative ways, and while you can also add text (including
ever-present #hashtags), it is primarily a visual medium.
You have probably figured out from the statistics above that
Instagram is no passing fad (unless you think this whole
"interwebs" thing is going to go out of style soon, in
which case, you should probably just stop reading now). Companies
and organizations have figured out the same thing, too, and many
have tried to take advantage of its widespread appeal to capture
the attention of applicants. In the last several years, it has
become increasingly common to see companies create direct
advertisements seeking to recruit new candidates via their
Instagram feed.
They have done this in creative and inventive ways; one of the more
popular Instagram recruiting messages in recent months saw a
national hotel chain post a series of pictures of their current
employees holding hand-written signs with their names and their
dates of hire on them. The message was that these smiling
individuals all enjoyed their time at the company and could express
themselves individually while working there, so maybe you should
join up too.
Other companies will post pictures of their employees enjoying
themselves on the job or engaging in team-building activities or
community-service projects, providing a glimpse into the average
day of an employee and hoping that talented people seeing these
images will want to join in on the fun. Regardless of the method,
the companies hope to create buzz and to reach an audience on their
own turf...after all, they know that many people spend a great deal
of their day scrolling through their phone or tablet.
While this trend will increase in the coming months and years,
organizations that decide to employ Instagram for recruiting
purposes will want to consider the following employment law
cautions:
Your Audience is Really, Really Young
If you've learned anything in the past few minutes, it's
that Instagram is primarily a young person's tool. Therefore,
you should expect that those people who present themselves as
applicants from following Instagram will be heavily-skewed towards
the twenty-something demographic. And while there's nothing
inherently wrong with having young people apply for jobs at your
company, there certainly could be something wrong if Instagram is
your sole recruiting method and you blatantly ignore candidates in
their 40s or older.
"But wait," you might say, "we'd take a look at
anyone who applied for the job no matter their age, it's not
our fault that the 55-year old candidate isn't on
Instagram." What you are describing there could be a prime
example of "disparate impact" discrimination, where your
hiring choice isn't purposefully discriminatory, but the method
you choose to make your employment decision leads to a biased
result.
In the 1980s, some employers unknowingly walked themselves into
disparate impact claims by solely relying on word-of-mouth hiring,
which often led to new employees who were in the same demographic
cohorts as current employees (since it is common for many national
and ethnic groups to closely associate with each other). The result
was a very homogeneous pool of employees that unintentionally
excluded large segments of the population and led to discrimination
claims.
Many human resources observers predict that a similar pattern could
emerge should employers restrict their hiring methods to 21st
century tactics like Instagram. The bottom line is that employers
should use Instagram as but one tool in the complete arsenal of
available options when recruiting, not foregoing more traditional
methods but instead using Instagram to complement them.
Show Your Diversity
When posting pictures of your current employees in one of your recruiting blitzes or branding exercises, make sure you present an accurate picture of your workforce. You should ensure that more than just a select few "beautiful people" get in the frame, so train your photographers and social-media managers to widen the focus of your Instagram campaign beyond a lucky few to include employees of all shapes and sizes, ages, ethnicities, nationalities, positions, etc. And if you're embarrassed when you realize that your existing workforce looks a little too standardized and uniform, maybe it's a good time to take a step back and address issues of diversity at your workplace before you worry about Instagram.
Get Your Permission Slips
If you are going to make one (or more) of your employees the
face of your new recruiting campaign that could (hopefully) go
viral and might even go national moments after you press the
"share" button, you're going to want to get express
approval from the person behind the face. While in some states it
may be sufficient to simply have a policy in your handbook whereby
employees grant permission to have their likenesses reproduced for
legitimate business purposes by virtue of their presence on the
job, you may want to consider getting written authorizations if you
have grand Instagram plans for the pictures.
Employers that follow these tips will be on the forefront of the
recruiting trail, well ahead of your competitors stuck in the 20th
century, and (hopefully) avoiding pesky labor and employment law
problems. And for all you know, you might even impress your
teenager at home (that is, until they find the next hot
social-media platform in a few years).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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