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3 Things Every Staffing Agency Needs To Know To Stay Out Of Court

Written by David Gee

3 Things Every Staffing Agency Needs To Know To Stay Out Of CourtWhen searching for information about a job candidate for your company, or a client’s, it’s not illegal to research an applicant’s online social media profiles. But there are some specific obligations you need to be aware of.

In this exclusive Staffing Talk interview, we speak with well-known employment lawyer Marshall H. Tanick, shareholder, founder and director of Minneapolis-based law firm Mansfield Tanick & Cohen P.A.

Staffing Talk: We all know there is lots of information available about people online. Can a staffing company get themselves into trouble today by using social media platforms to search for, or vet, the appropriateness of candidates for particular positions?

Marshall Tanick: Of course it’s conceivable that a company could get themselves into trouble today. But I don’t know that the risk is any greater with social media than the type of trouble a company could get into the old fashioned way of simply interviewing someone and rejecting them for reasons that are discriminatory. It may add some new dimension but the problems are age-old problems. I think the greater risk is on the other side, where employees, or potential employees, use social media sites to disseminate and share lots of information about themselves.

ST: Do you think staffing companies should rely on the information they find on the web for making decisions?

MT: Whenever employers rely on information to make a decision, they need to ensure the information is accurate and that they’re not discriminating. The abundance of information available today gives employers more to go on which can be used as a management tool in making decisions. But the more they do that, the more the argument could me made that perhaps they are getting that information improperly or the information may not be up to date or accurate. Yes, there is a lot of information out there. But acting on that information can sometimes get employers mired in a “legal bog.”

ST: Let’s say I have an interview with The Smith Staffing Agency. I think things go well. One day not long after I notice that “someone from the staffing industry” has been looking at my LinkedIn profile and I don’t hear from the agency again. Does that go in to the actionable category?

MT: It probably doesn’t. My advice would be to get on with your life if that happened to you. I mean just about anybody can sue anybody else for just about anything in this country. We know that. But it would be costly if you could find a lawyer to take the case. You would be spending money, energy and perhaps even risking your reputation. The hardest type of employment cases I have are “failure to hire” cases. Those could include discrimination. The reason they are difficult to try is that an employer or potential employer can point to so many factors when not hiring someone. They can simply say “I didn’t like someone,” or “I didn’t think they had enough training or experience,” or “I didn’t think they would be a good fit.” Failure to hire cases are very difficult to pursue, and they’re hard to win.

ST: For those smaller staffing companies that may not have a lot of resources, or constant access to an attorney to keep abreast of changing laws, how do they make sure they stay on the right side of the law?

MT: Here are three tips:

1) For starters, familiarize yourself with the specific laws in your state, because employment laws do differ somewhat from state to state. What’s legal or illegal in one state may not be in another. Of course some federal laws take precedent and can supercede state laws.

2) Err on the side of caution. Leave yourself as much leeway and room as possible.

3) Document everything so that your decisions can be justifiable later. Picture yourself in a courtroom setting or in a deposition having to explain why you made a particular decision. And it’s best if you can point to several factors as the reason behind your decision and not just a single factor.

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  1. Steve

    Good questions, David. You just saved me about a $150 consultation fee with my attorney. Just kidding, I know you’re not “giving legal advice.”

    I have a question: does “internet abuse” stand up in court? If an employee is abusing the internet for personal reasons, can we fire that person without fear of paying this employee’s unemployment for the next 6 months?

    It’s probably different in every state, but how would that stand up in Minnesota?

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  2. David Gee

    You reminded me Steve that I should have had a big old disclaimer on my posting. Because you are right! Neither Marshall, nor myself, are dispensing legal advice, via this piece anyway. You raise an interesting question, although one that may not have a definitive answer at the moment. I’ll take a shot at it though.

    When you say “Internet abuse” do you mean an employee who knowingly violates a written company social media policy, such as being critical of a competitor online or breeching a confidentiality agreement through a tweet? That person can likely be fired without recourse.

    But if instead you are talking about someone who is bashing a boss on Facebook the waters get a little murky.

    The American Civil Liberties Union says no, you can’t. But employers and companies say they have liabilities to protect, and that firing is within their rights. So far no court has ruled on such a case, and the legal community is actively trying to figure out where this is headed.

    In the meantime, you better have a social media guideline in place. Do you?

    The University of Massachusetts recently did a survey of HR people at thousands of American companies and found out that while employees at 83% of the companies surveyed are using social media platforms of one kind or another, only 33% of the employers have written guidelines in place. And that’s just being dangerously dumb.

    But even with guidelines in place, you might still be up ambiguity creek without a paddle.

    Consider the case of Dawnmarie Souza, who used to work at a Connecticut company until she started making derogatory comments abut the company and her supervisors online, albeit at her home computer on her own time.

    Still, the company canned her, and that firing brought her to the attention of the National Labor Relations Board, who cried foul.

    Specifically, the NLRB said the company’s social media and Internet policies were in violation of certain laws that protect employees’ right to talk about wages, working conditions and other factors.

    Having said that though, not all Facebook posts are protected speech, and this could get messy until everyone figures it out. That’s going to take a binding legal precedent that makes its way through the courts that lawyers can then reference while arguing future cases in front of judges.

    In the meantime, there are some free resources, if not outright “free legal advice.”

    Check out to access 164 sample social media policies from companies around the country.

    You can go to for Top 10 Corporate Guidelines for Social Media.

    And has a free corporate social media policies e-book to download.

    Good luck. Hope this helps.

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