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Corporate Counsel Connect collection

September 2014 edition

Social media: What to do with TMI?

Nick Pujji, Eric Beane and Katharine Liao at DLA Piper, Los Angeles office

With Twitter®'s debut on the stock market less than a year ago, the continuing expansion of Facebook® and LinkedIn®, and the rise of Vine, Snapchat, and Instagram, what we suspected is true – social media is not going anywhere. In fact, the SEC recognized social media in 2013, judges are opining on Twitter as part of their decisions (e.g., a NY judge analogized tweeting to shouting out the window in front of witnesses on the street who would be compelled to testify and reasoned that as to today's "online, information superhighway," third party providers like Twittter were like those witnesses), and states are continuing to pass legislation restricting employers' rights to access applicants' and employees' social media accounts.

In the world of social media, it seems like the question is always: what is next? While we know that social media is becoming more and more visual (limiting the number of characters and focusing on pictures and videos) – with social media's fastest growing users being individuals aged 55 to 64, and twerking (and countless other questionable choices) becoming a worldwide phenomenon overnight – it is hard to know where social media may take us, and equally difficult to know what this all means for employers.

Social media undoubtedly serves as a rich source of information, and can be hugely beneficial to an employer's marketing and recruiting efforts. However, ultimately the guidance provided on social media boils down to the truth that employers can and should use social media to their advantage without crossing the line (e.g., asking for passwords, using one employee to divulge information from another employee's social media account). Indeed, password protection legislation began in 2012 and since then, 16 states have passed legislation on this front: AK, CA, CO, IL, LA, MD, MI, NJ, NM, NV, OK, OR, TN, UT, WA, WI. Moreover, legislation has been introduced or is being considered and reconsidered in at least 24 states this year. Therefore – employers who choose to use social media must do so wisely.

Practical tips for using social media in the recruiting, hiring, and termination process

Given the vast amount of information on the internet, it is a perfectly reasonable (and facially legal) choice for an employer to research job applicants online, including their social media, before making employment decisions. The law does not explicitly restrict employers from accessing publically available information. If knowledge is power, social media has the potential to provide employers with a significant advantage when making hiring decisions. Nevertheless – with limited to no case law on what an employer may do, courts grappling with privacy concerns (or lack thereof) associated with an employee's use of social media, and guidance primarily stemming from the National Labor Relations Board – companies must also take into account the risks surrounding their review of an applicant's social media, and should have a plan for navigating those risks, which may include any of the following:

  • Beware of using protected information. While social media can provide a wealth of information regarding a candidate, conducting online searches often uncovers information that employers cannot lawfully use to make hiring decisions, such as an applicant's status in a "protected category." For example, a company may be subject to liability if it views an applicant's social media and learns information regarding that applicant's race, religion, national origin, sexual orientation, etc. – and then uses that information, consciously or unconsciously, to make a hiring decision.
  • Accuracy. As the witty State Farm Insurance television commercial with the internet-certified "French model" suggests: don't believe everything on the internet. People use social media websites for a variety of reasons, including entertainment and humor, and most of the information on social media websites is not verified. Thus, it is difficult to determine what information learned from social media is accurate.
  • Varying availability of information. While many people use some form of social media, not everyone does, and not everyone has the same privacy settings or posts the same amount of information about themselves online. Thus, when comparing the amount of information available via social media for different job candidates, a company will find that there is more personal information available about some than others. This disparity in information could provide an unfair advantage or disadvantage to both the company and the job applicant during the hiring process.
  • Inconsistent application. Along with varying amounts of information, because social media evolves as fast as the internet, the type of available information constantly changes. This makes it increasingly difficult to evaluate job applicants in a consistent manner. And, even if a company has a centralized system for storing candidate information, it is still difficult to store and properly format data that is pulled from the always changing internet.
  • Duty to accommodate? Viewing an applicant's personal information could also raise questions regarding legally required accommodations. For example, if a company learns, through social media, of an applicant's possible disability, the company may have to consider whether it has a duty to engage in the interactive process and/or accommodate an individual, in addition to making sure that it does not discriminate against that individual based on the information learned. The same goes for potential religious and/or cultural accommodations that the company learns of via social media.
  • Negligent hiring? If a company chooses to screen an applicant via social media, doing so may open the company to negligent hiring claims. While negligent hiring claims based on social media screening have yet to be directly litigated, courts have held that employers may be liable "when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed." Federico v. Superior Court (Jenry G.), 59 Cal.App.4th 1207, 1214 (1997). If evidence that an applicant could be harmful as an employee is tucked away somewhere on an applicant's social media pages and an employer misses it, down the road the company could face a negligent hiring claim if the employee causes harm. This also raises the question of how thoroughly a company must search social media to insulate itself from a negligent hiring claim when the decision to hire was based in part on social media. Do you look at a person's contacts, photographs, affiliations, events, statements, posts? It is difficult to know where to stop.
  • Recruiting hurdles. Viewing the social media of a job applicant can be a two-way street. How would you feel if a prospective employer scoured through your social media? Doing so may make a valuable prospective employee feel violated and/or embarrassed, and may ultimately sour the candidate on the prospect of pursuing employment with the company. Thus, accessing social media as part of the hiring process could stifle the company's ability to attract talent.

Having evaluated these risks, employers that still want to use social media are recommended to do the following:

  • Apply consistency. The way social media searches are conducted should be standardized and completed in the same way. The same type of searches, for the same type of information, should apply to each applicant.
  • Create a centralized process. In addition to consistent searches, the reporting and processing of information learned from social media should be evaluated and reported in a standard, organized manner. Employees conducting social media searches should know what to do with the information they learn.
  • Know what you are looking for. Even when the search process is conducted in a consistent manner, because social media can be a minefield of sensitive or protected information, employers should have a protocol for what information should be considered and not considered.
  • Articulate business considerations underlying use of social media. The company's social media policies should articulate the business reasons for using social media in the hiring process, including conducting legal background checks and learning about its job applicants.
  • Document as appropriate. Because social media can be such a rich source of information, it would be inefficient and problematic to document all of the information available relating to a job applicant. Therefore, only relevant job information that fits within the company's social media search protocol should be tracked and documented.
  • Comply with guidelines regarding background checks. The Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) recently issued a joint publication regarding background checks warning employers that they must comply with the Fair Credit Reporting Act (FCRA) when background checks include information from social media (in addition to other sources such as credit reports, employment and salary history, criminal records). For example, companies selling background reports must take reasonable steps to ensure the maximum possible accuracy of what's reported from social networks and that it relates to the correct person and companies must notify applicants if they intend on using this information, after obtaining written consent to obtain the background report.
  • Treat others' privacy as you would want your privacy to be treated. While social media searches can be conducted in a legal manner, the information learned may still be private and sensitive. It is important for employers to respect the privacy of their job applicants, and handle the information disclosed through social media searches in a discrete manner.
  • Review the various state laws regarding password protection. These statutes which are now being passed with regularity across the country – define what legislatures are not willing to allow: blanket access to an employee's social media account. Review of the statutory definitions of prohibited conduct and the exceptions, on a state-by-state basis, can also shed light on what other activities are permitted.
  • Follow NLRB guidance on implementing a lawful social media policy. There is limited to no case law on what an employer may do, and courts are currently grappling with privacy concerns (or lack thereof) associated with an employee's use of social media. The NLRB provides a helpful resource for guidance on creating social media policies. (See http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media).
  • Review and update social media policies, including policies regarding who owns the company's social media sites. The company should review and update its social media, and related, policies on a regular basis – and make clear who owns the company's social media sites. Additionally, the company's social media policies should not exist in a vacuum. Rather, they should connect and be consistent with all of the company's other related policies (e.g., hiring, computer/internet usage, mobile device, etc.).

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