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The events seek to collect social media referrals from employees, but some workers are balking.
Some employers are using mandatory “LinkedIn parties” to gather names and contact information for job prospects from their workers, but employees unhappy with being required to participate in these events are raising questions about their legality.
At the parties, employees must hand over lists of contacts obtained via social media that might be a good fit for the organization—a practice that is particularly common at companies hungry for technology talent.
While management attorneys disagree about whether the parties violate social media laws, and the answer to that question may vary by state, reliance on such recruitment methods may violate restrictive covenants and equal employment opportunity laws, management attorneys caution.
Employee relations concerns should be considered as well.
For employees forced to participate, LinkedIn parties can be uncomfortable, particularly if the individuals are already unhappy working at that organization. For others, it’s one more thing to do—and one that workers aren’t necessarily good at or interested in. An employee may feel that if he or she excelled at or enjoyed finding prospective employees, he or she would have gone into recruiting. All of these feelings, in conjunction with the perception that LinkedIn parties may be unlawful, can lead to higher turnover.
Chief among the legal concerns for many have been social media laws, which in at least 22 states restrict employer access to employees’ social media accounts. For example, in Maine, a recently enacted law broadly bars employers from requiring employees to disclose “any personal social media account information.”
“LinkedIn parties or any other instance where an employer requires its employees to turn over information from social media sites presents potential exposure to social media account access laws,” James Hammerschmidt, an attorney with Paley Rothman in Bethesda, Md., told SHRM Online. He noted that state laws may, as in Maine, prohibit the divulgence of personal social media account information.
“It really depends on the nature of the request and the particular state law,” said Kristin Starnes Gray, an attorney with FordHarrison in Spartanburg, S.C.
Peter Gillespie, an attorney with Fisher & Phillips in Chicago, said LinkedIn parties wouldn’t violate most social media laws, which typically prohibit only asking for passwords to employees’ or applicants’ social media accounts and “shoulder surfing.” (With shoulder surfing, a manager looks over an applicant’s or employee’s shoulder while the individual scrolls through his or her social media profile.)
But there may be other legal concerns.
What if, for example, an employee considers her social media contacts to be her own personal property? Gillespie said the employee could choose not to divulge the contacts’ names and simply say, “I don’t know who would be a good fit.” But that might not satisfy the employer if employees are expected to provide a certain number of names at each LinkedIn party.
Restrictive covenants pose an even greater legal hurdle. An employer might be unaware that an employee is bound by a restrictive covenant, such as a nonsolicitation agreement with a former employer, that prohibits the employee from providing a contact list containing information for the former employer’s customers and/or employees, Gray noted.
And relying too heavily on employee referrals may lead to the underrepresentation of certain protected groups in the employer’s job applicant pool and adversely affect the employer’s diversity efforts, she observed.
“Of course, employees can be excellent resources for identifying and recruiting new talent for open positions,” Gray said. But she recommended that any information be provided voluntarily and without violating any former employer’s restrictive covenant.
“Structuring the parties to ensure that they are legal is not difficult,” Hammerschmidt said. “Simply make the disclosures voluntary and make sure no one is retaliated against for not taking part. To incentivize participation, the employer can offer employee referral bonuses.”
While LinkedIn parties may not be prohibited by many social media laws now, this may be an area ripe for legislation. And, in the meantime, the perception that such gatherings violate social media laws may invite litigation.
For employers that want to make a referral program mandatory, Hammerschmidt offered this advice: “Don’t refer to the event as a LinkedIn party or make any other reference to social media accounts. Simply require the employees to provide up to X number of contacts that the employer may consider to be qualified candidates.”
Just be ready for the possibility that employees will leave if this is required so frequently as to become too intrusive or unduly burdensome.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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