Social Media and the Law
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Transcript of Social Media and the Law
Social Media and the Law
Presented By:
Mary E. Wright General Counsel & Shareholder 415-536-3431 [email protected]
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Agenda
What Social Networks* Do Recruiters Use?
*a very brief overview.
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Agenda
How Do Recruiters Use Social Networks?
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Agenda
What Legal Issues Do Recruiters Encounter?
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Agenda
What Should the Company Policy Say About Recruiting On Social Networks?
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What Social Networks Do Recruiters Use?
Social, Friendship, Invitation-based Networks
Professional, Career-based Networks
Personal/Affinity or Company Blogs
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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
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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
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What Legal Issues Do Recruiters Encounter?
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
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What Legal Issues Do Recruiters Encounter?
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
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What Legal Issues Do Recruiters Encounter?
“Reasonable Expectation of Privacy”
Employer Sets Expectations in the Workplace
Individual Sets Expectations on the Internet
Privacy
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What Legal Issues Do Recruiters Encounter?
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
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What Legal Issues Do Recruiters Encounter?
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
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What Legal Issues Do Recruiters Encounter?
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
Privacy
****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?
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What Legal Issues Do Recruiters Encounter?
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
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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!
Privacy
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What Legal Issues Do Recruiters Encounter?
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
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What Legal Issues Do Recruiters Encounter?
Background Checks
n Definitions
n Using Consumer Reports
n Using Investigative Consumer Reports
n California Specific Information
n Cost of Non-Compliance
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What Legal Issues Do Recruiters Encounter?
Background Checks
Definitions: n Consumer Report n Investigative Consumer Report n Consumer Reporting Agency n Employer-Obtained Information n Adverse Action n Employment Purposes
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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
What Legal Issues Do Recruiters Encounter?
Background Checks
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What Legal Issues Do Recruiters Encounter?
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
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What Legal Issues Do Recruiters Encounter?
California Specific Information
Background Checks
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
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What Legal Issues Do Recruiters Encounter?
Background Checks
California Specific Information l Restrictions on Criminal Information
n Older than 7 Years n Certain Types of Crimes
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What Legal Issues Do Recruiters Encounter?
n Cost of Non-Compliance
Background Checks
n Liability l Negligent Failure l Willful Failure l Knowing
Violation l False Pretences
Never mislead or misrepresent.
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What Legal Issues Do Recruiters Encounter?
Background Checks
n Possible Limitation on Liability l Reasonable Procedures l Followed Every Time l Discipline for Failure l Maintain Records l Train
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What Legal Issues Do Recruiters Encounter?
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
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What Legal Issues Do Recruiters Encounter?
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
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What Legal Issues Do Recruiters Encounter?
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
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What Legal Issues Do Recruiters Encounter?
Not Private Accessible
Properly Obtained
Now can you use information from the Internet?
Not necessarily!
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What Legal Issues Do Recruiters Encounter?
1. is a member of a protected class.
Your social media search uncovers the candidate:
Unusable Information
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What Legal Issues Do Recruiters Encounter?
1. is a member of a protected class. 3. has financial problems.
Your social media search uncovers the candidate:
Unusable Information
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What Legal Issues Do Recruiters Encounter?
1. is a member of a protected class. 3. has financial problems.
5. has an arrest record.
Your social media search uncovers the candidate:
Unusable Information
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What Legal Issues Do Recruiters Encounter?
1. is a member of a protected class. 3. has financial problems.
5. has an arrest record.
6. has filed Workers compensation claims.
Your social media search uncovers the candidate:
Unusable Information
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What Legal Issues Do Recruiters Encounter?
1. is a member of a protected class. 3. has financial problems.
5. has an arrest record.
6. has filed Workers compensation claims.
7. has a medical condition or disability.
Your social media search uncovers the candidate:
Unusable Information
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What Legal Issues Do Recruiters Encounter?
1. is a member of a protected class. 3. has financial problems.
5. has an arrest record.
6. has filed Workers compensation claims.
7. has a medical condition or disability.
8. complained about her former boss.
Your social media search uncovers the candidate:
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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.
Social Media and the Law
Presented By:
Mary E. Wright General Counsel & Shareholder 415-536-3431 [email protected]