Zappos Insider: The Death of Job Postings and the Rise of the Borg

As set out in a prior post, Zappos has launched a new careers site and removed all job postings. Instead of applying for jobs, persons interested in working at Zappos will need to enroll in a social network run by the company, called Zappos Insiders. The social network will allow them to network with current employees by digital Q&As, contests and other means in hopes that Zappos will tap them when jobs come open.

"Zappos Insiders will have unique access to content, Google Hangouts, and discussions with recruiters and hiring teams. Since the call-to-action is to become an Insider versus applying for a specific opening, we will capture more people with a variety of skill sets that we can pipeline for current or future openings," said Michael Bailen, Zappos’ head of talent acquisition.

The idea, in part, is that recruiters will monitor the interactions, and alert promising applicants as job positions become available. "Our recruiters are focusing on proactive sourcing…so that we know EXACTLY who we want to interview once a position becomes available," Stacy Donovan Zapar, Zappos' Social Recruiting and Employer Branding Strategist, wrote in a posting  (Big News: The Day the Posting Died) explaining Zappos Insiders.

We are the Borg. You will be assimilated.

For those not Star Trek fans, Borgs are beings that are part organic and part artificial. They assimilate almost everyone they come in contact with into the Borg - a mass consciousness - and those persons become efficient drones who do not even remember their old life. A quote from one of the episodes:

"We are the Borg. Lower your shields and surrender your ships. We will add your biological and technological distinctiveness to our own. Your culture will adapt to service us. Resistance is futile.”

Assimilation by the Borg and the Zappos Insider program seem to have some potentially troubling similarities (though one might suggest that a Zappos Borg might be able to really "Deliver WOW Through Service" - Zappos' first core value ...). Zappos' gathering of personal information/borg assimilation process starts with a person's becoming a member of Zappos Insider. For example, a person may sign up to be a Zappos Insider by linking to their FaceBook or LinkedIn accounts. If signing in using a LinkedIn account, you are asked to allow Zappos the following accesses:

• Your full profile
• Your email address
• Your connections
• Your contact info
• Invitations and messages
• Company pages

If signing in using a Facebook account, you are asked to allow Zappos the following access:

• Your public profile
• Your friend list
• Your email address
• Your News Feed
• Your friends' likes

Once a person becomes an Insider, the information collection/borg assimilation process continues as Zappos tracks and records Insiders' interactions with the company - from discussions with recruiters and hiring teams, to Google Hangout participation, conversations with Zappos "ambassadors," to digital Q&As, to contests, etc. 

Borg Assimilation: All Good, Right?

On March 12, 2014, a panel of experts addressed the EEOC at a meeting held at EEOC headquarters in Washington and discussed the growing use of social media and how it impacts the laws the EEOC enforces. In her testimony at the meeting, one of the experts, Lynne Bernabei, Esq. stated:

Surveys of hiring managers show that they are increasingly using social media to screen job candidates, and that employers may make a determination on an employee's suitability for a job opening based on the content of his or her social networking website. However, social media websites also display "non-job-relevant information that could be used inappropriately for evaluating applicants, resulting in biased hiring decisions," and "the potential for legal liability is great, considering the dearth of research regarding whether [social network-] derived information validly predicts job performance." ... Marital status, family and childcare obligations, home location (and therefore length of commute), and even sports team affiliation may directly or indirectly affect an employer's willingness to hire a given candidate-and all of this information is easily accessible on Facebook.

In response to a March 25, 2012 letter from Senator Charles E. Schumer and Senator Richard Blumenthal, the EEOC stated that covered employers - like Zappos - may not use personal information from social networks to make employment decisions on a prohibited basis, be it race, color, religion, national origin, sex, age, disability, or protected genetic information. 

For example, the letter explained, rejecting an applicant because he is Muslim, as disclosed through social media postings, would violate Title VII of the Civil Rights Act of 1964, as amended (Title VII). Similarly, rejecting an individual with a family history of breast cancer, as shown in the caption to a photo of her completing the "Race for the Cure" in memory of her sister "who lost her battle with this horrible disease," would violate the Genetic Information Nondiscrimination Act (GINA). Finally, screening out an applicant because her Facebook page has photos of her 50th birthday celebration, would violate the Age Discrimination in Employment Act (ADEA).

The EEOC's May 2012 response to Senators Schumer and Blumenthal also discussed another important topic: pre-employment inquiries about protected status. The laws enforced by the EEOC have differing approaches to this issue. Title VII and the ADEA do not explicitly prohibit questions about race, gender, national origin, religion, or age 40 or above, but if an EEOC investigation shows that an employer inquired about these matters (for example, by viewing Facebook or LinkedIn profiles and profile pictures), the EEOC will assume that the employer considered the information relevant to its employment decision and will scrutinize the facts closely. By contrast, GINA and Title I of the Americans with Disabilities Act (ADA) explicitly provide that making a pre-employment disability-related inquiry, or requesting or requiring genetic information, constitute independent statutory violations subject to certain conditions and exceptions

Anything Particularly Problematic?

Renée Jackson, Esq., a lawyer who led the Social Media & Technology in the Workplace team within the Labor and Employment practice group at Nixon Peabody LLP, was one of the experts testifying at the March 12, 2014 EEOC meeting mentioned previously. Nixon Peabody LLP counsels employers and their clients range greatly-in size, location, and industry. 

A portion of Ms. Jackson's testimony is set out below, the portions of her testimony that may prove challenging for Zappos and the Zappos Insider program are highlighted in red. Advice from Ms. Jackson that may be particularly problematic for Zappos Insider are bolded:

I advise employers wishing to supplement traditional hiring practices with social media to consider the following options for compliance:

• Use social media as part of a larger recruitment plan, including both traditional and new media, in-person networking events, job fairs, and referrals.
• Have a third-party consumer reporting agency or a designated individual within the company (who does not make hiring decisions) conduct the social media background check and filter out any protected class information.
• When using social media information during the hiring process, confirm that the information obtained was actually created by or relates to the applicant (as opposed to someone else with the same name), and disregard any information that cannot be confirmed as accurate.
• Only review publicly available information about an applicant. Do not request usernames/passwords or otherwise try to gain access to non-public or password-protected social media.
• If possible, screen all applicants in a uniform and consistent manner. Have human resources conduct the search at the same stage of the hiring process for each candidate (before the offer of employment, for example), rather than have hiring managers randomly conducting searches on their own.
• Avoid recruiting solely from social media or limiting applicants to applying only through social media or only with their social media profile.
• Avoid making hiring decisions based on an applicant's lack of a social media presence, unless a social media presence is required for the position (e.g., employer is hiring a social media manager for the company).
• Make sure those responsible for hiring know the applicable protected classes (federal, state, and local). Train all supervisors and HR professionals on how to lawfully use social media during recruiting and hiring. Support all hiring decisions with legitimate, non-discriminatory reason(s) and documentation.

Ms. Jackson closed her testimony noting, “Employers must understand that the technology will always outpace the law and, as a result, employment policies and practices must be constantly revisited and updated accordingly. On the flip side, however, many of the employment law concepts that employers are already familiar with can be applied and should not be forgotten just because the spaces are new.”

Michael Bailen, who heads talent acquisition for Zappos, told the Wall Street Journal that he is surprised that Zappos appears to be the first to drop job listings. “We’re hoping a lot of other companies jump on board,” he said. For reasons set out in this and two prior posts (Zappos Hiring: Culturally Fit? Legally Defensible? and Zappos: The Future of Hiring and Hiring Discrimnation), Zappos may find other employers unwilling to adopt this practice. 

Zappos Hiring: Culturally Fit? Legally Defensible?

Zappos has two separate sets of interviews. The hiring manager and his or her team will interview for the standard fit within the team, relevant experience, technical ability and so on. And then the HR department does a separate set of interviews purely for culture fit. Zappos has questions for each and every one of their ten core values. "They [applicants] need the relevant skill set and experience and so on," CEO Tony Hsieh says. "But far more important is, are they going to be good for the culture? Is this someone we would choose to have dinner or drinks with, even if they weren't working for Zappos?"

One of Zappos' core values is, "Create fun and a little weirdness." So, during an interview, a candidate gets asked, "On a scale of 1 to 10, how weird are you?"  "If you're a 1, you're probably a little bit too strait-laced for us. If you're a 10, you might be too psychotic for us," says Hsieh.  Another potential deal-breaker is saying you don’t socialize with co-workers outside the office. That could undermine another of Zappos’ core values: “Build a positive team and family spirit.”

Michael Hyter, senior partner at Korn Ferry has states, “The word ‘‘fit’’ in the absence of that support factor [fair consideration for jobs for people who happen to be different] can easily be misinterpreted as ‘‘being like me,’’ instead of what the position requires. Many organizations make the mistake of assuming that those tasked with selecting new hires are equipped to do so fairly because they are nice people or good workers. But failure to ensure the selection process is based on standard criteria with trained interviewers can result in unintentional bias in the spirit of looking for someone who’s a perceived ‘‘good fit.’’

Built-In Headwinds

As Natasha Tiku wrote in ValleyWag, "Taken at face value, "not a culture fit" sings: Nothing personal, you'd probably be happier somewhere else! But what prioritizing "fit" really allows a company to do is reject an applicant for not matching the pattern. For being an "other" in some way. For coming from a different background, looking different, acting different, having different interests, all of which should be considered an asset.

More than forty years ago, the Supreme Court ruled in Griggs v Duke Power Co. that "good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability." The Court found that some of Duke’s hiring requirements, like a high school education or a certain I.Q. level, were irrelevant to some jobs and had the effect of excluding qualified black workers. The Court held that the law "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited."

As previously noted, failing to socialize with co-workers outside the office is a potential deal-breaker for Zappos. According to the company, that could undermine one of its core values: “Build a positive team and family spirit.”  This out-of-office socializing "deal-breaker" eliminates many persons from employment consideration, including single parents, children whose elderly parents need care, persons going to school part-time, and well-rounded persons who have interests outside the company - persons who engage in charitable activities, participate in civic functions or practice their faith.

A frequently-mentioned aspect of the Zappos culture involves the consumption of alcohol:

• According to Business Insider, "Zappos prides itself on a fun, quirky company culture where the CEO Tony Hsieh has been known to dole out shots of Grey Goose."
• A Zappos press release reads, "I had three vodka shots with Tony during my interview," says Rebecca Ratner, Zappos's head of human resources. "And I'm not atypical."
• As Ms. Ratner stated, "While we rack up some pretty big bills for happy hours and parties, we believe that every one of those dollars comes back to us threefold in employee engagement, which to us is really what success is all about."

The prominent role alcohol plays in Zappos' hiring for "cultural fit" would seem to present built-in headwinds for Mormons, Baptists, Muslims, recovering alcoholics, diabetics, and persons scarred - physically or mentally - by the acts and actions of alcoholics. As noted in Zappos: The Future of Hiring and Hiring Discrimination, many of the persons experiencing those headwinds are Protected Persons under federal and state employment discrimination laws.

During an interview at Zappos, a candidate gets asked, "On a scale of 1 to 10, how weird are you?" According to Zappos' CEO, "If you're a 10, you might be too psychotic for us." In a company that has "Create Fun and a Little Weirdness" as one of its core values, the word "weird" is associated with mental illness.

Historically, many employers asked applicants to provide information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities -- particularly nonvisible disabilities, such as mental illness -- despite their ability to perform the job.The Americans with Disabilities Act (ADA) prohibits all disability-related inquiries pre-job offer.

The use of tests and other selection procedures, like Zappos' cultural fit interview, can violate the ADA if an employer intentionally uses them to discriminate based on disability or if they disproportionately exclude persons with disabilities, like persons with mental illness.

EEOC guidance notes that employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. If a selection procedure screens out a protected group (i.e., race, gender, age, disability), the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure.

Core Values and Transparency

Zappos established ten core values to clearly define the Zappos Family culture, values that are to be reflected in everything they do and every interaction they have. When searching for potential employees, Zappos looks for people who both understand the need for these core values and are willing to embrace and embody them. The ten core values are explained by Zappos employees in the following video:

With the exception of the CEO, there appear to be no persons of color among the seven employees interviewed in the video. It may well be that the video is not a representative sampling of employee diversity at Zappos and, if so, the company, acting in accordance with the core value “Build Open and Honest Relationships With Communication,” could publish information on its workforce diversity along the lines of Google's recent disclosure. As Google's Senior Vice President of People Operations wrote:

We've always been reluctant to publish numbers about the diversity of our workforce at Google. We now realize we were wrong, and that it’s time to be candid about the issues. Put simply, Google is not where we want to be when it comes to diversity, and it’s hard to address these kinds of challenges if you’re not prepared to discuss them openly, and with the facts. 

The same spirit of openness that leads Zappos to supply information on sales to its suppliers through its extranet should lead it to provide its workforce diversity information to its employees, applicants, and the general public - Zappos' customers.