Ask a Lawyer // January 2018 // Recruiting Employees Within the Law

This year, I will be doing something that is a little scary for all business owners, I will be hiring my first employee. Finding good employees is difficult for any business owner and those of us in service industries face, I think, more difficulty because we need to find individuals who can do the job, complement our skill set, have their own valuable skill set, and fit within a culture that has tended to be driven solely by our own personality. Adding an employee will change the nature of the business.

There are dozens of ways to recruit prospective employees—Indeed.com, Monster.com and similar sites; newspaper advertising or its online equivalent, word of mouth through our professional network, and other ways. Also becoming quite common is the use of social media advertising looking for qualified candidates.

We all know the benefits of social media as a marketing tool. Using Facebooks or LinkedIn or other platforms targeting filters, we can place ads before the targeted market with far less expense and time than ever before. Of course, many employers have kept their recruiting costs low by using targeting filters to advertise directly to those individuals with the traits the employer seeks. Microtargeting sounds like a win-win scenario. Facebook, Google, and LinkedIn have all have microtargeting ability by using the massive amounts of data collected by the tech behemoths on users.

But many of the microtargeting ads that help sell services and products are blatantly illegal when used to seek out employees.

Facebook’s recent foray into the realm of HR recruiting includes an area where users can search ads and where employers can post ads (for a fee of course). The filters included everything from geography, age, favorites movies or sports teams, gender, race/ethnicity, multicultural affinity, types of hobbies, political persuasion, even affinity for various types of music (which makes me wonder if my former employers would have hired me had they known about my musical tastes). The problem is that some of the search parameters that can entered are potentially discriminatory and may lead to liability for employers seeking applicants.

Some filters, such as geography, musical tastes, or favorite sports or hobbies are all permissible filters, although some are less useful than others. But many of the filters run afoul of the law. Limiting the ages of potential employees is likely discriminatory. The Age Discrimination in Employment Act of 1967 makes it illegal under federal law to discriminate against workers over the age of 40. If a design firm is looking for a programmer for websites, an ad that is targeted to potential employees between 25 and 35 would not be seen by a job seeker who is 43 who may very well be qualified on all other grounds. Such limitation are discriminatory.

Sex, gender, race, ethnicity, and national origin discrimination are all protected classes under Title VII of the U.S. Code. Any employer found discriminating against individuals on these classes are subject to civil penalties as well as lawsuits by the government and the offended individual. Employers who are found to have willfully violated this law may be punished with triple damages and paying the legal fees for the person discriminated against.

Federal law is not the only concern. States themselves also have additional protected classes ranging from disabilities, genetic disposition, and sexual orientation being among the most common protected classes. Some states add additional potential liability for violating either federal or state law regarding discrimination.

We are all on the lookout for quality employees. All businesses are always looking to save money. I do not suggest you cannot use social media or Google ads to find potential employees, but do so in a legal way. Do not use filters for microtargeting that implicate a protected class under the law, but some filters are permissible. If you have doubts about what filters to use, please consult legal counsel.

SPECIAL NOTE

All designers and firms should consult with their accountant in the coming weeks. Many aspects of the tax reform package recently signed in to law may be beneficial to small business owners, particularly those small firms with pass-through taxation.


BIO Disclaimer

MATT JOHNSTON IS A SOLO ATTORNEY WITH A FOCUS ON SMALL BUSINESS REPRESENTATION, COPYRIGHT AND TRADEMARK LAW, AND DISPUTE RESOLUTION. MANY OF MATT’S CLIENTS ARE DESIGNERS AND CREATIVE PROFESSIONALS WHOSE CONCERNS OVERLAPPING MATT’S PRACTICE AREAS. MATT CONCENTRATES ON DRAFTING CLEAR CONTRACTS OF ALL TYPES AND HELPING DESIGNERS WITH THE LEGAL SIDE OF THE DESIGN BUSINESS. AS A BENEFIT TO AIGA MEMBERS, MATT OFFERS A 10% DISCOUNT ON ALL CONSULTATION APPOINTMENTS, FLAT FEE PROJECTS, AND HOURLY FEES.

THE CONTENT OF THIS COLUMN IS FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE APPLICABLE IN ANY SPECIFIC SITUATION. NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED THROUGH THIS COLUMN. IF YOU NEED CONFIDENTIAL LEGAL ADVICE, MATT IS AVAILABLE FOR PRIVATE AND PRIVILEGED CONSULTATIONS. CONTACT MATT IF YOU HAVE SPECIFIC CONCERNS.

By Matthew S. Johnston
Published January 8, 2018
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