Social Media Minefield: Legal Problems with Recruiting Through Social Media

1. Social Media Minefields:
Legal Problems in
Recruiting Through
Social Media

2. Agenda
Privacy Background Social Company
Checks Media Policy

3. Privacy
What is
“privacy?”
"the
quality
of
being
secluded
from
the
presence
or
view
of
others”

4. Privacy
What is
“privacy on
the Internet?”
“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)

5. Privacy
Legal Basis
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.

6. Privacy
Common
Issues
• 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

7. Privacy
Common
Issues
• HIPAA
• Social
Security
Numbers
• Identity
Theft
• Security
Breach
• Employer
Trade
Secret,
Confidential
and
Proprietary
Information

8. 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

9. 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.

10. 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

11. Background
Checks
What are you
looking for?

12. 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

13. 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.

14. Background
Checks
Fair Credit
Reporting Act
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.

15. Background
Checks
• Background Financial Information
• Personal Information
• About Employee or Applicant
• For permissible “employment purpose”
• For evaluation of an individual for employment,
promotion, reassignment or retention.

16. Background
Checks
Reports
Consumer Reports:
General Financial and Personal Data
Investigative Consumer Reports:
In-Depth Character Investigation

17. Background
Checks
Notice
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

18. Background
Checks
Adverse Action
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

19. Background
Checks
Not included
Medical information
Arrest records older than 7 years
Unless annual salary > $75,000
Convictions always allowed

20. Background
Checks
Misconduct
FCRA
excludes
investigations
into
employee
misconduct
conducted
by
3rd
parties.
If
adverse
action
relies
upon
report,
employee
entitled
to
summary.

21. Background
Checks
Disposal
FACTA:
Fair
and
Accurate
Transactions
Act
of
2003
• Reasonable
protection
and
disposal
measures
• To
prevent
identity
theft

22. Social, Friendship,
Invitation-based Networks
Professional, Career-based Networks
Personal/Affinity or Company Blogs
Social Media
What social networks
do Recruiters use?

23. 1. Find Active Candidates
2. Find Passive Candidates
3. Promote Company to Attract
Candidates
4. Peer Regression to Source
Candidates
Social Media
How do Recruiters use
social networks?

24. • Unauthorized Access
• Union Organizing Efforts
• Astroturfing & Sock Puppets
• Unusable Information
Social Media
What legal issues do
Recruiters encounter?

25. 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
Social Media authorization
Unauthorized Access

26. 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
Union Organizing Efforts

27. 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
Astroturfing & Sock Puppets

28. 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?

29. Not Private
Accessible
Properly Obtained
Now can you use information
from the Internet?
Not Necessarily!
Social Media
What legal issues do
Recruiters encounter?

30. Why not?
• Protected Class
• Financial Problems
• Arrest Record
• Workers’ Comp. Claims
• Medical Condition/Disability
• Complained About Boss/
Employer
Social Media
Unusable Information

31. Why not?
• Lawful Off-Duty Conduct
• Political Beliefs
• Lack of Reliability
• Access to Others
Social Media
Unusable Information

32. • Decide whether employer will
search social media in hiring.
• Search consistently and in a
uniform manner.
• Notify candidates of intent to
search.
Company
• Use social media only after Policy
initial interview.
Social Media
• Define the job and what
information is relevant to it.

33. • Identify the sites you will
review to obtain relevant info.
• Read, understand, comply
Company
with site’s TOS.
• Never misrepresent yourself
to gain access.
Policy
• Never coerce another to
obtain access. Social Media
• Document all sites visited.

34. • Store only usable information
with application.
• Insulate decision-maker from
raw data.
• Base decisions only on usual
information (“scrubbed”)
Company
• Train recruiters, publish policy, Policy
advise decision-makers.
• Document legitimate, non-
Social Media
discriminatory reason for
decision.

35. Questions

36. Social Media
Minefields
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