Legally Speaking – The law and ethics of recruiting in today’s wired world

Dan Michaluk8 December 2008

Legally Speaking – The law and ethics of recruiting

Hot issues for recruiters

• The online speech phenomenon

• The war for talent, mobility and information

• and…

• Not on our campus!

• e-mail as evidence

• Governance, security and background checks

Legally Speaking – The law and ethics of recruiting

Online speech

• Prospective employees

• Current employees

• Former employees

Legally Speaking – The law and ethics of recruiting

Online speech – Prospective employees

• Privacy issues

• Is the collection of information authorized?

• Is the collection of information necessary?

• Is the information accurate for its purposes?

• Are you open by giving candidates notice?

Legally Speaking – The law and ethics of recruiting

Online speech – Prospective employees

An information collection model for efficient and compliant

recruiting

Legally Speaking – The law and ethics of recruiting

Online speech – Prospective employees

An information collection model for efficient and compliant

recruiting ✓

Assumingan interest in the

employee’s reputation

✗

✗

Legally Speaking – The law and ethics of recruiting

Online speech – Prospective employees

• Employment issues

• Can you anticipate a conflict of interest that should

be addressed at the start of the relationship?

Legally Speaking – The law and ethics of recruiting

Online speech – Current employees

• Key principles for hard cases

• Employers can restrict employee speech to protect

a legitimate interest

• There needs to be a nexus to the workplace, but the

nexus often will not be physical

Legally Speaking – The law and ethics of recruiting

Online speech – Current employees

• Have a policy

• The rules apply to pubic speech in any medium

• This includes speech to your 500 closest friends

• Explain that the internet is not a forum for complaint

• Set an expectation on the identity issue

• Address ownership and risk issues pertaining to

business blogs

Legally Speaking – The law and ethics of recruiting

Online speech - Former employees

• Must rely on a tort or crime

• Two options

• Convince the ISP to take it down

• Go to court

• Don’t discount the role of advocacy to the ISP

• Beware the public affairs cost of losing a “takedown” fight

Legally Speaking – The law and ethics of recruiting

The war for talent, mobility and information

• General rules

• Employers are generally free to poach

• Departed employees are generally free to compete

subject to…• …fiduciary duties• …reasonable restrictive covenants• …restrictions on use of confidential information• …restrictions on use of intellectual property

Legally Speaking – The law and ethics of recruiting

The war for talent, mobility and information

• Intellectual property

• Employers are deemed by statute to be the first

owner of copyright

• Employees have moral rights unless waived

• Who owns ideas and inventions depends on what is

agreed, both implicitly and expressly

Legally Speaking – The law and ethics of recruiting

The war for talent, mobility and information

• Confidential information• Based on the nature of the information and the

circumstances in which it was communicated

• Based on misuse by a party receiving information

Legally Speaking – The law and ethics of recruiting

The war for talent, mobility and information

• Best practices• Reasonable restrictive covenants

• Invention clauses/policies

• Consistent treatment of confidential information as confidential• This will also help manage FOI requests

• Hire and manage for retention

Legally Speaking – The law and ethics of recruiting

Not on my campus!

• University controls access to property

• Human rights legislation does not apply

• Don’t engender expectations you can’t meet

• Have a clear policy

• Have a fair process for evaluation, consistent with

university values

Legally Speaking – The law and ethics of recruiting

For more information

• Please check out All About Information at

• http://danmichaluk.wordpress.com

Legally Speaking – The law and ethics of recruiting in today’s wired world

Dan Michaluk8 December 2008