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A presentation to the Canadian Association of Career Educator\'s and Employers on recruiting hot topics.
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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