Social Media Minefields: Legal Problems in Recruiting Through Social Media
AgendaPrivacy Background Social Company Checks Media Policy
PrivacyWhat is“privacy?” "the quality of being secluded from the presence or view of others”
Privacy What is “privacy on the Internet?”“An individuals 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)
PrivacyLegal Basis 4 Common Law Privacy Claims • Public disclosure of private facts. • Portraying an individual in a false light. • Use of an individuals name or likeness. • Intrusion into an individuals private solitude or seclusion.
PrivacyCommonIssues• 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
PrivacyCommonIssues • HIPAA • Social Security Numbers • Identity Theft • Security Breach • Employer Trade Secret, Conﬁdential and Proprietary Information
PrivacyReasonableexpectationof 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
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.
Background Checks Fair Credit Reporting ActWhen employers hire a 3rd party to conduct abackground check or obtain reports from outsideagencies, such background checks and reportsare subject to FCRA.
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.
Background Checks ReportsConsumer Reports: General Financial and Personal DataInvestigative Consumer Reports: In-Depth Character Investigation
Background Checks NoticePrior to obtaining any consumer report Clear, Conspicuous, Written Disclaimer Obtain Written ConsentPrior to obtaining Investigative Consumer Report Clear, Conspicuous, Written Disclaimer Mailed within 3 days of request Include statement of rights
Background Checks Adverse ActionBefore 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 Not includedMedical informationArrest records older than 7 years Unless annual salary > $75,000 Convictions always allowed
Background Checks MisconductFCRA excludes investigations into employee misconduct conducted by 3rd parties. If adverse action relies upon report, employee entitled to summary.
Background Checks DisposalFACTA: Fair and Accurate Transactions Act of 2003 • Reasonable protection and disposal measures • To prevent identity theft
Social, Friendship, Invitation-based Networks Professional, Career-based Networks Personal/Affinity or Company BlogsSocial MediaWhat social networksdo Recruiters use?
1. Find Active Candidates 2. Find Passive Candidates 3. Promote Company to Attract Candidates 4. Peer Regression to Source CandidatesSocial MediaHow do Recruiters usesocial networks?
Stored Communications Act: • Prohibits unauthorized intrusions of stored electronic information • Provider exception with notice to users A recruiter cannot intentionally access stored electronic communications withoutSocial Media authorizationUnauthorized Access
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 MediaUnion Organizing Efforts
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 SiteSocial MediaAstroturfing & Sock Puppets
So, if information is accessible does that mean you can use it to make an adverse hiring decision? Not Necessarily!Social MediaWhat legal issues doRecruiters encounter?
Not Private Accessible Properly Obtained Now can you use information from the Internet? Not Necessarily!Social MediaWhat legal issues doRecruiters encounter?
Why not? • Protected Class • Financial Problems • Arrest Record • Workers’ Comp. Claims • Medical Condition/Disability • Complained About Boss/ EmployerSocial MediaUnusable Information
Why not? • Lawful Off-Duty Conduct • Political Beliefs • Lack of Reliability • Access to OthersSocial MediaUnusable Information
• 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.
• 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.
• 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.