Instagram Poses Opportunities, Risks for Employers
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Instagram Poses Opportunities, Risks for Employers

By Allen Smith  8/19/2014
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Finding candidates through Instagram is becoming increasingly popular for recruiters, but it poses legal risks if certain hurdles aren’t cleared.

Marriott, for one, has done an effective job of using Instagram to recruit, according to Rich Meneghello, an attorney with Fisher & Phillips in Portland, Ore. For example, one of Marriott’s posts shows employees holding posters featuring their handwritten names and dates of employment. The photo includes new and longer-term workers of various ages, races and , he remarked, and makes the company look like a fun place to work.

Instagram can be a useful engagement tool as well, noted Christine Walters, SPHR, an attorney who is a consultant with FiveL Company in Westminster, Md.

“Inviting current employees to share their own pictures from work could encourage active engagement, and perhaps entice otherwise reticent participants who are encouraged by their peers to join in the photo opp,” she noted. “Ads and messages that include pictures grab the attention of readers more than those without. Instagram is no exception.”

But an employer may want to centralize the process by which pictures and messages are posted,” she observed, “to ensure content reflects the image and message you are trying to portray.”

Age Discrimination

Watch out for age discrimination if using Instagram to recruit, Meneghello cautioned. Instagram is used primarily by individuals who are in their 20s or younger, so if an employer recruits solely by Instagram it is “playing Russian roulette with an age discrimination claim,” he remarked.

Instead, Instagram should be “just one tool in recruiting.” Don’t sacrifice other recruiting tools for the shiny new one, he warned. LinkedIn, Facebook,  Pinterest, ads and head hunters are more widely used across age groups, he said. Using all the approaches available to HR is “an easy way to minimize age discrimination risks,” he said.

Intellectual Property

Make sure you get the consent of those who are photographed to be included in a company Instagram post. There should be written, signed permission indicating that employees know the picture will be used for a promotional purpose, Meneghello noted.

Also, don’t use clip art, which can run afoul of intellectual property laws, he cautioned.

Proprietary Information

“Employers that already host corporate Facebook pages and other social media accounts have likely considered some of the issues related to employees’ posting photos of sensitive corporate images or information,” Walters noted. These issues pertain to Instagram snapshots as well.

Sensitive information could take the form of photos that reveal camera or alarm locations at financial institutions, photos that disclose proprietary information or trade secrets, photos of employees who may object to published pictures, and comments or postings that might be less than complimentary about the employer’s policies, programs or practices, she observed.

Screening and Recruiting Tool

Instagram might be an effective screening tool as well, if an employer discovers an applicant has posted something inappropriate there, such as a naked selfie or swastika. Jonathan Segal, an attorney at Duane Morris in Philadelphia, said that such screening currently is rare, partly because Instagram pages often are private rather than open to the public like many Facebook or LinkedIn pages.

Instagram use by employers is similar to where Twitter use was two or three years ago, Segal remarked. “I think it’s not yet in the mainstream of HR as a recruiting tool.”

But not recruiting with Instagram has its own risks, he added. Millennials, in particular, may seek out a company’s presence on Instagram to get a sense of its culture, wonder why a company is not present there, and look elsewhere for employment.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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