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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
Presented By
415-442-4810