Legal Issues Related to the Use of Social Media to Screen Applicants for Employment and

1. Legal Issues Related to the Use of Social Media to Screen Applicants for Employment and Employment Decisions & Policy Issues Regarding the Use of Social Networking Sites Linda Sharp, University of Northern Colorado Colleen Colles, Nichols College

2. Social Media: Fad or Future? • http://www.youtube.com/watch?v=sIFYPQjYhv8

3. Use of Social Media to Screen Job Candidates • 45% of employers use SM to research job candidates • 35% of employers use unfavorable content on SM to reject candidates (June 2009 survey)

4. Disparity in Perception • Survey of 2000 students and 300 employers • 32% of students viewed employers’ use of Facebook as illegal: 42% stated it was a violation of privacy • However only 25% of employers saw use as unethical: 21% stated violation of privacy

5. Online Persona • Univ of Ill. Grad interests included “smokin’ blunts, shooting people and obsessive sex” • Chemical engineering major-”I like to blow things up” • Duke Univ. student-explicit photos & commentary about sexual escapades, drinking and pot smoking, photos of person passed out after drinking

6. Student-Athlete Portrayals • Hazing • Firearm use • Underage Drinking • Obscene Photos • Racial Slurs & Harassment • Campus Threats

7. Competing Considerations • Should employers disregard “inappropriate content” as simply posturing or are portrayals indicative of really poor judgment? • Understanding the “culture” of Social media • Egocasting phenomenon-identities often constructed and manipulated “I am constantly broadcasting who I am” (Rael, 2007) “Technology can freeze these moments when, I in the spirit of the person, they are fleeting, not self-identifying” (Mitrano, 2006)

8. Authenticity of Site • Online computer twins • “Cyber slamming” • Online smearing done anonymously • Fake online identity done by competitor for employment position • Embellishments by “friends”

9. Title VII Protections Unlawful for employer “to fail or refuse to hire…,or otherwise discriminate against any individual…, because of such individual’s race, color, religion, sex, or national origin” In interview cannot generally ask questions pertaining to these protected categories because such questions may suggest a discriminatory intent Online profiles have photos-disclose race, color, sex, religion Online profiles often have access to favorite groups which disclose religious affiliation

10. Example of a Title VII Issue • Employer checks SN profiles of equal number of qualified Caucasian and African-American applicants before interviewing • Substantially fewer number of African- American candidates selected to interview • Difficult to defend race discrimination claim even if race did not play a part

11. Another Example of Title VII Issue • What if employer only checks profiles of certain types of applicants, e.g., based on race or religion? • What if employer evaluates information found differentially based on sex, race, religion or other protected class?

12. ADA Issues • ADA—unlawful to deny person employment based on a real or perceived disability • Portrayal of disability in photos on site • Profile discloses support of HIV-AIDS research or fund-raisers and employer fears hiring HIV-positive employee

13. Fair Credit Reporting Act • FCRA governs employment background checks IF done by 3rd party screener If applicable, then • Applicant must be notified that investigation may be performed • Applicant must be given opportunity to consent • Applicant must be notified if info in reportused to make an adverse decision

14. Fair Credit Reporting Act • Expand definition of “consumer reporting agency” to include social networking • Interpret definition of “consumer report” broadly to encompass online profiles • Expansion would allow FCRA to cover employers’ direct searches of SM

15. Invasion of Privacy • General view --Not a strong claim • “Reasonable Expectation of Privacy”? • Info on Internet in public domain • “If it’s in the public domain, it’s fair game” • Information voluntarily disclosed and posted in public domain Use of privacy settings may raise expectation of “limited access” but not reasonable expectation of privacy

16. Invasion of Privacy • Some precedent to suggest that there is still a limited right to privacy “There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law…the mere fact that a person can be seen by someone does not automatically mean that he or she can be legally forced to be subject to being seen by everyone” Sanders v. American Broadcasting Co. (Cal. 1999)

17. Privacy—Point & Counterpoint • “Privacy is not merely a personal predilection; it is an important functional requirement for the effective operation of social structure” –Robert Merton “You already have zero privacy—get over it”—Scott McNealy, CEO Sun Microsystems

18. Employee Privacy in Personal Life Professor Sugarman-Privacy rests upon protection of personal autonomy “the importance we place on giving people the liberty to shape and act out their own lives as they wish, free from the scrutiny of how others might think about that conduct or what they might say about it”

19. Employee Privacy in Personal Life • Professor Dworkin -importance that privacy plays in our society rests upon the fact that privacy encompasses a right to self-determination and to “define who we are” • Self-determination includes freedom to associate with people one chooses • American employees should have right to expect privacy in personal lives whether online or physically in homes

20. Part II Employment Decisions & Policy Issues Regarding the Use of Social Networking Sites

21. Statistics (Proofpoint) • Dismissal of employees due to misuse of social media more than doubled from 2008 to 2009 • 8% of companies with more than 1,000 had dismissed someone for their on-line activities • 15% had disciplined an employee for multi-media sharing or violating posting policy • 17% for violating blog or message board policies

22. Examples of Termination & Discipline based on social networking use: • Larry Johnson • Philadelphia Eagles • Mississippi State University • Deputy Press Secretary Manhattan • Computer giant employee • North Carolina Teachers

23. Relevant laws • Privacy protection • Stored Communications Act • Title VII / Anti-Discrimination • Lifestyle/off-duty conduct • National Labor Relations Act • Whistle Blower / FMLA

24. Privacy Issues for employees • What is reasonable expectation ? • Blogging • Information must be “private”

25. Stored Communications Act • illegal to intentionally access stored communications without authorization • Pietrylo v. Hillstone Resturant Group

26. Employee Anti-Discrimination • If employee revealed a protected characteristic • If others engaged in the same activity were not dismissed

27. At-will employment doctrine eroding? Not an absolute shield for employers Public Policy exemptions?

28. Lifestyle Protection Laws Deal with legal, off-duty conduct, prohibit employer from disciplining employee California, Colorado, New York, Connecticut, Massachusetts, North Dakota

29. Exceptions • Information presents a conflict of interest or is reasonably related to employee’s job • Proprietary info, trade secrets etc… • Damage to business, reputation, or inconsistent with employer’s business

30. National Labor Relations ActWhistle Blower / FMLA • Prohibits employers from disciplining/terminating non-supervisory/non-management employees who engage in “concerted activity” for the purpose of “mutual aid or protection” • Public employers have to consider the 1st Amendment rights of their employees

31. Best Practices • For Employers • Before and after hiring • For Employees • Applicants and current