Is LinkedIn Legal?

I am a huge fan of LinkedIn.  It is by far the best site for job seekers and employers, not to mention recruiters.  The vast majority of the candidates I find for my executive recruiting clients I find through LinkedIn, and I find them quickly.

The secret of my success, so to speak, is my vast network.  With tens of thousands (forty at present!) of first degree connections, I can literally find anyone, in any industry, for any conceivable position – and, occasionally, a few inconceivable ones!

But is it legal to use LinkedIn for recruitment purposes?

I am not an attorney, and do not claim to be, so make sure to check with an employment lawyer but, to the best of my understanding, here is the situation:

I have nothing to worry about because I never look at profiles on LinkedIn.  That’s right, the profile that LinkedIn members spend so much time preparing is irrelevant for me.  The only things I am interested in are where the person is located and what industry they belong to.  And that’s it.  Nothing else matters.

What I do is send an individual message to each of my first degree connections.  I create a list of connections to contact by doing an “Advanced Search” and filtering by geography and industry (or industries).  I basically write to each, “I’m a recruiter.  I have a client looking to hire a ______.  The job description follows.  If you are interested, I would be delighted to receive your resume.  If you happen to know of possible qualified candidates, please feel free to share this message with them.  Thanks, Bruce.”  And that’s it.  What do I care what is written in their profile?  If they are interested, they’ll send me their resume.  If they are uninterested, they won’t and reading their profile would have been a waste of time.  And if they are uninterested, but know of someone who might be a good candidate, reading their profile would still have been a waste of time.  All that matters is location and industry.

And because I do not look at profiles, I cannot be accused of breaking the law.  What’s the problem with a profile?  How could I break the law?  The photo.

Everyone in the United States seeking employment belongs to a “protected status,” meaning a group of people who cannot, by law, be discriminated against.  Protected status, depending on where you live, includes: gender, race, religion, sexual orientation, disability, genetic predisposition, military/veteran status, arrest record, domestic violence victimhood, and marital status, to name the key “classes.”  (Just as an aside, an employer also cannot discriminate against the unemployed.)

Think of how many of these statuses can be determined by a photo.  Except for not being able to tell if someone has a genetic predisposition to a certain illness or medical condition, has been arrested or is an abuse victim, you might be able to determine the rest based on a photo.  And then go prove that that was not a factor in reaching your decision as to whether or not to invite the individual for an interview.

And that is what we are concerned with: the pre-interview process or, if you prefer, the candidate selection process.  Did you decide not to invite Ms. Smith in for an interview because you saw her LinkedIn profile photo and immediately knew that she was a woman, Hispanic and a Christian?  And did you guess, based on her last name, that she is married because her race does not match her name?  No?  Prove it!

And you can prove it.  First, the person making the final decision about potential candidates should not be looking at profiles.  Second, the person looking at profiles should prepare a written report explaining why they believe the individual should be contacted.  Third, nothing in the report should relate to any protected status but should clearly indicate qualifications.

Just to take this one step further, the same is true if an employer decides to do more than just look at their LinkedIn profile.  If they want a Google search done, they should receive a report based solely on non-protected status details of what is discovered on-line.

So to summarize, employers can use LinkedIn to find candidates, as long as they do not know about their protected statuses.

If you have any questions about this or any other employment related topic, list to my interview, this Wednesday at Noon, on The Voice of Manhattan Business, and call-in to ask your questions.

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