Social Media Minefields: Legal Problems in Recruiting Through

Social Media

Agenda

Privacy Background Checks

Social Media

Company Policy

"the  quality  of  being  secluded    from    the  presence  or  view  of  others”  

Privacy What is “privacy?”

“An individual's right to determine: •  what information they would like others

to know about themselves; •  which people are permitted to know that information; and •  the ability to determine when those people can access that information."

-- Elias Bizannes (OpenWeb Foundation, Australia)  

Privacy What is “privacy on the Internet?”

4  Common  Law  Privacy  Claims  • Public  disclosure  of  private  facts.    • Portraying  an  individual  in  a  false  light.  • Use  of  an  individual's  name  or  likeness.    •  Intrusion  into  an  individual's  private  solitude  or  seclusion.    

Privacy Legal Basis

• Physical  Searches  • Video  Surveillance  •  Internet  and  E-­‐Mail  

•  Right  to  Organize    •  GINA  •  Fraternization  •  Testimonials  and  Endorsements  for  Employer  •  Monitoring  Employee  Use  of  Social  Networking  Sites  

Privacy Common Issues

•  HIPAA  •  Social  Security  Numbers  •  Identity  Theft  •  Security  Breach  •  Employer  Trade  Secret,            Confidential  and  Proprietary  Information  

Privacy Common Issues

Privacy Reasonable expectation of privacy.

Terms of Service (TOS) create "reasonable expectation of privacy”

on the Internet

Determine which Networks Your Company Will Use

Learn the TOS for that Network

Privacy Website’s privacy policy ≠ privacy

Facebook Users can block access to personal information through onerous opt-out procedure****

Twitter Searchable by e-mail, no privacy between members for any tweet

****Although Facebook makes a lot of noise about privacy: it’s hard to understand their rules; and it doesn’t apply to Apps.

Privacy Website’s privacy policy ≠ privacy

Google Buzz G-mail contact lists are indexed by Google

LinkedIn Fully searchable by members, access to connections

MySpace Members can search for other members but full blog may be password protected

Background Checks

What are you looking for?

Background Checks •  Driving Records

•  Credit History

•  Reference Checks

•  Military Service Records •  Criminal and Civil Records

•  Verification of Professional Licenses

•  Verification of Education and Past Employment

•  Bankruptcy and Workers’ Compensation Records

•  Verification of Social Security Number and Past Addresses

Background Checks Rules

•  Limited in time to post-offer, pre-employment period. •  Job-related information only. •  Kept Confidential. •  All applicants or no applicants, not on a selective basis.  

When employers hire a 3rd party to conduct a background check or obtain reports from outside agencies, such background checks and reports are subject to FCRA.

Background Checks Fair Credit Reporting Act

•  Background Financial Information •  Personal Information

•  About Employee or Applicant •  For permissible “employment purpose” •  For evaluation of an individual for employment,

promotion, reassignment or retention.  

Background Checks

Consumer Reports: General Financial and Personal Data

Investigative Consumer Reports: In-Depth Character Investigation  

Background Checks Reports

Prior to obtaining any consumer report Clear, Conspicuous, Written Disclaimer Obtain Written Consent

Prior to obtaining Investigative Consumer Report Clear, Conspicuous, Written Disclaimer Mailed within 3 days of request Include statement of rights  

Background Checks Notice

Before taking adverse action, provide: •  Copy of the report •  Contact Information for reporting agency •  Statement that agency did not make adverse

decision •  Notice of right to obtain copy  

Background Checks Adverse Action

Medical information Arrest records older than 7 years

Unless annual salary > $75,000 Convictions always allowed

Background Checks Not included

FCRA  excludes  investigations  into  employee  misconduct  conducted  by  3rd  parties.  

If  adverse  action  relies  upon  report,  employee  entitled  to  summary.  

Background Checks Misconduct

FACTA:    Fair  and  Accurate  Transactions  Act  of  2003  • Reasonable  protection  and  disposal  measures    •  To  prevent  identity  theft  

Background Checks Disposal

Social, Friendship, Invitation-based Networks

Professional, Career-based Networks

Personal/Affinity or Company Blogs  

Social Media What social networks do Recruiters use?

Social Media How do Recruiters use social networks?

1.  Find Active Candidates 2.  Find Passive Candidates 3.  Promote Company to Attract

Candidates 4.  Peer Regression to Source

Candidates

Social Media What legal issues do Recruiters encounter?

•  Unauthorized Access

•  Union Organizing Efforts

•  Astroturfing & Sock Puppets

•  Unusable Information

Social Media Unauthorized Access

Stored Communications Act:

•  Prohibits unauthorized intrusions of stored electronic information

•  Provider exception with notice to users

A recruiter cannot intentionally access stored electronic communications without

authorization

Social Media Union Organizing Efforts

National Labor Relations Act:

Protected Speech •  Affords employees the right

to engage in “concerted activity” “collective activity”

•  A recruiter cannot make a hiring decision based upon concerted protected activity.

Social Media Astroturfing & Sock Puppets

Astroturfing •  Corporate sponsorship of

grassroots activity •  False community action

Sock Puppets •  Online identity for deception of

community •  Praise, defend, support site

and purpose •  Used on Corporate/Affinity Site

Social Media What legal issues do Recruiters encounter?

So, if information is accessible does that mean you can use it

to make an adverse hiring decision?

Not Necessarily!

Social Media What legal issues do Recruiters encounter?

Not Private Accessible Properly Obtained

Now can you use information from the Internet?

Not Necessarily!

Social Media Unusable Information

•  Protected Class

•  Financial Problems

•  Arrest Record

•  Workers’ Comp. Claims

•  Medical Condition/Disability

•  Complained About Boss/Employer

Why not?

Social Media Unusable Information

•  Lawful Off-Duty Conduct

•  Political Beliefs

•  Lack of Reliability

•  Access to Others

Why not?

•  Decide whether employer will search social media in hiring.

•  Search consistently and in a uniform manner.

•  Notify candidates of intent to search.

•  Use social media only after initial interview.

•  Define the job and what information is relevant to it.

Company Policy Social Media

•  Identify the sites you will review to obtain relevant info.

•  Read, understand, comply with site’s TOS.

•  Never misrepresent yourself to gain access.

•  Never coerce another to obtain access.

•  Document all sites visited.

Company Policy Social Media

•  Store only usable information with application.

•  Insulate decision-maker from raw data.

•  Base decisions only on usual information (“scrubbed”)

•  Train recruiters, publish policy, advise decision-makers.

•  Document legitimate, non-discriminatory reason for decision.

Company Policy Social Media

Questions

Social Media Minefields

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