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EmploymentSource™ Newsletter
 September 2013 Edition    
 
  
About the Author

Rebecca Weiss

Rebecca E. Weiss, Esq. has more than thirteen years of employment law experience, including traditional labor law.  Rebecca has represented clients of all sizes and industries, ranging from international Fortune 500 companies to sole proprietorships, in both litigation and transactional matters.  As a litigator, Rebecca defended corporate clients against a variety of employment-related claims. As a transactional attorney, Rebecca has extensive experience drafting employee handbooks and advising clients with respect to internal investigations, hiring, discipline and termination practices, workplace policies and procedures.

Prior to her law firm experience, Rebecca served as a federal judicial law clerk to the Hon. Raymond L. Finch, then Chief Judge of the U.S. District Courts for the U.S. Virgin Islands where she drafted numerous opinions involving violations of federal and local employment laws.

Rebecca received her B.A. in Philosophy from the University of California, Irvine and her J.D., cum laude, from Chapman University School of Law.  Rebecca is admitted to practice in California and the U.S. Virgin Islands. 
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Social Media's Impact on Hiring, Management and Discipline: What Every Employer Needs to Know  

 
Rebecca Weiss, Esq.

  

 

Remember when only birds "tweeted" and writing on someone's wall or "tagging" was graffiti that could get you in trouble with the police and courts?  Today, "tweets," "wall posts," "tags" and even seemingly innocuous "likes," to name just a few, may put you in court for entirely different reasons.  The explosion of social media, such as Facebook, Twitter and LinkedIn, has revolutionized the way we communicate both personally and professionally, often blurring the lines between the two personas.  
  
As with the advent of most new technology, social media use raises a multitude of new legal issues that are being unraveled by the courts and other lawmakers. In the past year, state and federal laws have begun to provide significant guidance to employers as to lawful monitoring, regulating and application of social media information.  
 
Social Media and Hiring Decisions
  
Employers have increasingly used social media sites to recruit and scrutinize employee candidates. A 2012 social recruiting survey provides that 92% of U.S. companies now use social media and other social networks when looking for employees, up from 78% five years ago.1  While most companies use the more professional site LinkedIn, two thirds now also recruit through Facebook and more than 50% use Twitter to locate new talent.2 
  
In 2012, media reports about employers requiring access to an applicant's social media site as a hiring condition created a frenzy of public outrage and threats of legal action by Facebook.3 In response to the uproar, many states started enacting "social media password protection laws," beginning with Maryland in April 2012. Since then social media password protection legislation has been enacted in an additional ten states, including California.4  Effective January 1, 2013, the California Labor Code prohibits employers from requesting or requiring applicants or employees to (1) disclose social media log-in credentials; (2) access personal social media in the employer's presence; or (3) divulge any personal social media, except in limited cases with respect to employees.5 

  

California and other state's social media protection laws only prevent employers from reviewing an applicant or employee's "private" social media information. But what about situations where the applicant or employee does not utilize the site's privacy settings? In these cases, an otherwise lawful online search may reveal applicants' Facebook posts, organizations they have "liked," events they plan to attend, people with whom they associate, books they read, places they have been, etc. Employers who come across this public information while conducting online searches are not violating any employment laws. Rather, it is their employment-related decisions after viewing the information that may violate employment-related laws, particularly federal, state or local anti-discrimination laws.
  
Generally, federal, state or local anti-discrimination laws prohibit employment decisions based on "protected characteristics" like age, gender, marital status, pregnancy, race, ethnicity, religion, national origin, citizenship, sexual orientation, disability, military status, and in some cities even physical characteristics such as appearance, weight and height.   
  
Unlike traditional methods used in the hiring process such as resume reviews, interviews and reference checks, the review of social media sites often provides protected class information about a candidate that an employer may not lawfully consider when making employment-related decisions. Knowledge of protected class information eliminates one of the best defenses to employment discrimination claims, to wit, ignorance of the facts supporting the alleged discrimination.   
  
For example, the "About" section of Facebook allows users to provide their gender, birth date, relationship status (including whether they are interested in men or women), religious and political beliefs, and languages spoken.6  All of this information provides everything an employer needs to know as to whether the applicant belongs to not just one but multiple potential protected classes.  
  
Similarly, public "tweets" or Facebook "posts" may reveal an applicant's protected characteristics such as a female applicant who "tweets" that she recently learned she was pregnant or an applicant who posts about his or her struggles with diabetes. Consequently, despite the employer's efforts to limit the applicant's interview to legally permissible questions, the employer now knows the candidate belongs to a protected class. If the applicant is not offered the job, the employer faces the risk of a discrimination lawsuit in which the employer will likely be required to provide computer records of social-media related searches during the hiring consideration period.7 

  

Advice: Investigating the background of employee candidates is an important part of the hiring process for many employers. This is appropriate for numerous reasons, including avoiding liability for negligent hiring. If you decide to include a social media search in making hiring determinations, here are some suggestions for avoiding discrimination claims and lawsuits:
  
1. Conduct an in-person interview before researching a candidate online so that you don't risk asking improper questions based on information learned through your online search.
  
2. As with any background check, the applicant should be informed that a background investigation including a search of social media sites will occur.
  
3. After the interview, have a person who is not the employment decision-maker conduct the search and review of social media information. This can be done internally by creating a shield between the person conducting the social media search and the person making the employment-related decisions. Or, the employer can hire a third party to conduct background checks including searches of public information on social media sites. However, be aware that federal laws such as the Fair Credit Reporting Act ("FCRA") may be implicated depending on the third party source used to conduct a social media search. For example, employers who use a Consumer Reporting Agency ("CRA") to conduct background checks are required under the FCRA to get written authorizations from applicants prior to the investigation, ensure the accuracy of the information, and give notice regarding adverse actions based on the CRA's report.  State and local laws may also apply to pre-employment background checks.  Consult with legal counsel prior to conducting background investigations.
  
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[1] Jobvite's Social Recruiting Survey 2012 -http://recruiting.jobvite.com/company/press-releases/2012/jobvite-social-recruiting-survey-2012/.

[2] Id.

[3] https://www.facebook.com/note.php?note_id=326598317390057.

[4] http://www.shrm.org/LegalIssues/StateandLocalResources/Pages/Nevada-Socia-lMedia-Password-Protection.aspx.

[5]CA Labor Code Section 980. California employees have the same protections as applicants with respect to social media log-in information, but an employer may require an employee to divulge social media content when relevant to investigations or related proceedings involving allegations of employee misconduct or violations of law. However, the information obtained may only be used for purposes of the investigation or related proceeding. Id.

[6] Even seemingly innocuous likes and dislikes of certain food, books, television shows or music may disclose an applicant's sexual orientation or particular ethnic or religious group. Events an applicant plans to attend may also disclose his or her sexual orientation or religious beliefs.

[7] Employment laws require employers to maintain records of any material used in making hiring decisions which would include print outs of social media information reviewed. See, e.g., 29 C.F.R. Part 1602.