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

http://www.youtube.com/watch?v=sIFYPQjYhv8

45% of employers use SM to research job candidates

35% of employers use unfavorable content on SM to reject candidates

(June 2009 survey)

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

•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

Hazing

Firearm use

Underage Drinking

Obscene Photos

Racial Slurs & Harassment

Campus Threats

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, Iin the spirit of the person, they are fleeting, not self-identifying” (Mitrano, 2006)

Online computer twins

“Cyber slamming”

Online smearing done anonymously Fake online identity done by competitor for

employment position Embellishments by “friends”

•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

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

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?

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

FCRA governs employment background

checks IF done by 3rd party screener

If applicable, thenA

pplicant must be notified that investigation may

be performedA

pplicant must be given opportunity to consent

Applicant must be notified if info in

reportused to make an adverse decision

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

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

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)

“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

•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”

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

Employment Decisions &

Policy Issues Regarding the Use of Social Networking

Sites

•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

Larry Johnson

Philadelphia Eagles

Mississippi State University

Deputy Press Secretary Manhattan

Computer giant employee

North Carolina Teachers

Privacy protection

Stored Communications Act

Title VII / Anti-Discrimination

Lifestyle/off-duty conduct

National Labor Relations Act

Whistle Blower / FMLA

What is reasonable expectation ?

Blogging

Information must be “private”

illegal to intentionally access stored communications without authorization

Pietrylo v. Hillstone Resturant Group

If employee revealed a protected characteristic

If others engaged in the same activity were not dismissed

• Not an absolute shield for employers

•Public Policy exemptions?

•Deal with legal, off-duty conduct, prohibit employer from disciplining employee

•California, Colorado, New York, Connecticut, Massachusetts, North Dakota

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

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

For Employers

Before and after hiring

For Employees

Applicants and current