ERE Conference: Social Media and the Law

Social Media and the Law

Presented By:

Mary E. Wright
General Counsel & Shareholder
415-536-3431
mary.wright@ogletreedeakins.com

Agenda

What Social Networks* Do Recruiters Use?
EMPLOYERS & LAWYERS, WORKING TOGETHER

*a very brief overview.

FIRST CLASS SERVICE, COAST TO COAST

Agenda

How Do Recruiters Use Social Networks?


Agenda

What Legal Issues Do Recruiters Encounter?


Agenda

What Should the Company Policy Say

About Recruiting On Social Networks?


What Social Networks Do Recruiters Use?

Social, Friendship,

Invitation-based Networks

Professional, Career-based Networks

Personal/Affinity or Company Blogs


How Do Recruiters Use Social Networks?

Find Active Candidates

1. 

2.  Find Passive Candidates

3.  Promote Company to Attract Candidates

4.  Peer Regression to Source Candidates


What Legal Issues Do
Recruiters Encounter?

n  Privacy
n  Background Checks
n  Unauthorized Access
n  Union Organizing Efforts
n  Astroturfing & Sock Puppets
n  Unusable Information



n  U.S. Constitution, 4th Amendment
n  Prohibits
unreasonable
searches and seizures
n  U.S. Constitution, 1st Amendment
n  Prohibits
retaliation for speaking
matters of public concern
n  California Constitution: Article I, § 1
n  Personal,
medical, financial, arrest,
and employment records

Privacy


n  Definition of Privacy:
"the quality of being secluded from
the presence or view of others

What is secluded from view on the Internet?

If it is accessible, is it really private?

Privacy


Reasonable Expectation of Privacy

Employer Sets Expectations in the Workplace

Individual Sets Expectations on the Internet

Privacy

n  Social Networking s Definition of Privacy:

"an individual's right to determine:
(a) what information they would like others to know
about themselves;
(b) which people are permitted know that information;
and
(c) the ability to determine when those people can
access that information."

-- Elias Bizannes (OpenWeb Foundation, Australia)

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

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: (a) it s hard to understand
their rules; and (b) it doesn t apply to Apps.

So is expectation of privacy reasonable?

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

Privacy


So, if information is accessible
does that mean you can use it
to make an adverse hiring decision?

Not necessarily!

Privacy

Background Checks

n  Performed by Third Parties
l  Background Check Companies
l  Recruiters
n  If it is part of a service for which
employer pays – 3rd party rules
n  Performed by Employer
l  In House Human Resources
l  In House Recruiting Employee
l  In House Counsel

Background Checks


n  Definitions

n  Using Consumer Reports

n  Using Investigative Consumer Reports

n  California Specific Information

n  Cost of Non-Compliance

Background Checks

Definitions:

n  Consumer Report
n  Investigative Consumer Report
n  Consumer Reporting Agency
n  Employer-Obtained Information
n  Adverse Action
n  Employment Purposes

Background Checks

Using Consumer Reports

n  Make Full Disclosure
n  Obtain Authorization
n  Certify Compliance to CRA
n  Provide Copy to Subject
n  Give Written Notice
l  Before Adverse Action
l  At Adverse Action

Background Checks


Using Investigative Consumer Reports
n  All of the Above and

n  Response to Request
for More Information
l  Response within 5 Days
l  Provide A Summary of Your Rights Under the Fair Credit
Reporting Act - FTC

Background Checks

California Specific Information

n  Must obtain Authorization

n  No case law requiring
separate authorizations
n  California may or may not
permit continuing
Authorization
n  Does require check the
box form

Background Checks

California Specific Information

l  Restrictions on Criminal Information
n  Older than 7 Years
n  Certain Types of Crimes

Background Checks

n  Cost of Non-Compliance

n  Liability
l  Negligent Failure

l  Willful Failure

l  Knowing
Violation
l  False Pretences
Never mislead or misrepresent.

Background Checks

n  Possible Limitation on Liability

l  Reasonable Procedures
l  Followed Every Time
l  Discipline for Failure
l  Maintain Records
l  Train

Background Checks


Stored Communications Act
l  Prohibits unauthorized intrusions
of stored electronic information
l  Provider exception with
notice to users

§  A recruiter cannot intentionally access stored
electronic communications without authorization

§  Pietrylo v. Hillstone Rest. Group d/b/a Houston s
(D.N.J., No. 06-5754, jury verdict 6/16/09)

Unauthorized Access

National Labor Relations Act: Protected Speech

l  Affords employees the right
to engage in concerted activity collective activity
n  A recruiter cannot make a hiring decision based upon
concerted protected activity.
l  Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002)

Labor 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 Site

Fake Testimonials

Not Private

Accessible
Properly Obtained

Now can you use information
from the Internet?

Not necessarily!

Your social media search uncovers the candidate:

1.  is a member of a protected class.

Unusable Information



3.  has financial problems.





5.  has an arrest record.






6.  has filed Workers compensation claims.







7.  has a medical condition or disability.







7.  has a medical condition or disability.

8.  complained about her former boss.


What Should the Company Policy Say
About Recruiting On Social Networks?
1.  Define the job and what information is relevant to it.

2.  Identify the sites you will review to obtain relevant info .
3.  Read, understand, comply with site s TOS.
4.  Never misrepresent yourself to gain access.
5.  Never coerce another to obtain access.
6.  Document all sites visited.
7.  Store only usable information with application.
8.  Insulate decision-maker from raw data.
9.  Base decisions only on usual information.
10.  Train recruiters, publish policy, advise decision-makers.


ERE Conference: Social Media and the Law

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