Today’s post from the ABA Journal Law News Now reports on a study claiming that Facebook posts can predict job performance. I have no doubt this is true – to some extent. However, employers should be exceedingly wary about using Facebook or similar methods to screen potential employees. Here are timely reminders about what employers can and cannot do when using the Internet as a hiring/screening tool:
Excerpted from Digging the Dirt: Digital Tips for Employers and Job Seekers by Tamara Russell of Barran Liebman:
Potential Equal Employment Opportunity Liability
“If an employer Googles an applicant’s name or reviews an applicant’s Facebook public profile, the employer could technically be “interviewing” that applicant. An Internet search, for example, could reveal that an applicant is on a cancer survivor’s Web site, or pictures of the applicant wearing a burqa – both of which place the applicant in protected class categories. If an unsuccessful applicant learns about that Internet search, the applicant might argue that the employer based its decision (either consciously or unconsciously) with a discriminatory bias.”
Genetic Information Nondiscrimination Act (GINA)
Currently, employers are liable for acquiring genetic information about an employee unless the information is commercially and publicly available. (The Internet fits within this definition.) However, final regulations have yet to be adopted, and it is possible the EEOC will exclude personal Web sites or social networking sites if password protected.
Criminal Background Checks
“If an employer Googles a candidate and discovers on a newspaper’s Web site that a candidate has a criminal background, the employer must be mindful of the civil rights laws that may be implicated if the candidate is disqualified from employment for that reason.” (See Ms. Russell’s discussion of the recent case, EEOC v. Freeman, in the original article.)
Credit Check Reports
Effective July 1, 2010, Oregon law prohibits employers from using or obtaining a job candidate’s credit history for employment purposes. Limited exceptions apply. “An employer who conducts Internet searches on a candidate, discovers information about an applicant’s credit history, and refuses to hire that personal because of the results of that search may violate this new law.” (And other civil rights laws discussed in the article.)
Bankruptcy and Civil Court Filings
Federal law prohibits employers from discriminating against an applicant based on the applicant’s bankruptcy history. Oregon laws provide additional protections for certain civil and administrative filings.
Stored Communications Act
Federal law “makes it illegal for any person to intentionally access stored communications without authorization.” The only exception? If the user authorizes access. “Any time an employer accesses a restricted Web site to look into the activities of an applicant or an employee, it must do so with the full and free consent of someone who already has access to that site. Getting that consent in writing is a good idea.”
Fair Credit Reporting Act
Employers who use third-party services to run background checks must follow FCRA notice and disclosure requirements. “Whether an employer implicates FCRA when it does an Internet search on a candidate apparently has not yet been tested in the courts. It seems unlikely, however; Google and Facebook would not likely fall within the statute’s definition of a ‘consumer reporting agency.’”
Will the Real Beverly Michaelis Please Stand Up
As Ms. Russell points out, the final trap to using the Internet as a screening device may be the search itself. Unless a searcher is precise and careful, it is easy to bring up multiple instances of a candidate’s name. For example, I like to think of my name as relatively unique, however there is a public profile for a “Beverly Michaelis” on Facebook (not me) and I have received at least two Google Alerts informing me that “Beverly Michaelis” died. (I’m happy to report this Beverly Michaelis is alive and well.)
Ms. Russell concludes with some final words of wisdom – both to employers and prospective candidates. Her article is well worth reading. For tips on hiring (and screening) potential job candidates, see Know Who You Hire.
Shortly before I first blogged about Ms. Russell’s article, I attended Ethical Traps in Cyberspace, a presentation at the 2010 ABA Annual Meeting. Here are some further tips from that CLE, which touch on related areas of using the Internet to “dig dirt,” including discovery and social media policies in law firms:
Discovery
- Beware of “friending” witnesses on social networking sites in preparation for litigation. Such contact may be deceptive if the purpose or nature of the connection is not made clear. The same may hold true if the lawyer asks a third party to make the contact. See Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02 (March 2009).
- If an individual communicates with his or her lawyer using a work computer, the communications may or may not be protected by attorney-client privilege: Scott v. Beth Israel Med. Ctr (no privilege in using work computer); Stengart v. Loving Care Agency, Inc. (e-mails sent via personal Yahoo! account on company laptop protected by attorney-client privilege.)
- Serving a subpoena duces tecum on social media Web sites to obtain personal information of users is not permitted under the Stored Communications Act, 18 USC § 2701(a)(1). Crispin v. Audigier. Lawyers seeking social media content should rely on traditional discovery methods directed to the specific parties involved.
- Employers are specifically prohibited from obtaining unauthorized access to their employees’ password-protected Web sites under the SCA. See Konop v. Hawaiian Airlines, Inc. and Pietrylo v. Hillstone Restaurant Group.
- The Internet Archive can be used to retrieve old Web pages.
Counseling Clients
- Ask potential clients and witnesses about their use of social media; review social media content as needed.
- Caution clients about posting anything related to their case, particularly content that may reflect on their character or credibility. It may be best for the client to discontinue use of social media altogether.
- Warn your client that opposing counsel or someone connected to opposing counsel may attempt to independently access the client’s profile or “friend” the client. Even if this does not occur, social network postings may be within the scope of a traditional discovery request.
- Be sensitive to spoliation of evidence issues, for example: if a client changes a pre-existing social network page, is this equivalent to altering a “document?” What about changing privacy settings or deactivating or removing an account altogether? Would the result be different if the profile was preserved before it was removed or changed?
Social Media Policies
- Provide guidance on both employer-sanctioned and personal use of social media, in particular how personal use may affect the employer or the employee’s professional standing.
- Remind employees that anonymity on the Web doesn’t exist.
- All employees should respect the intellectual property of others and avoid posting content that is defamatory or inappropriate. Using social media to “fire back,” harass, or negatively engage others can come back to haunt the employee and employer.
- Additionally, lawyers and legal support staff should follow ethical parameters: protect client confidentiality, avoid giving legal advice, and use disclaimers as needed.
- Social media policies should be drafted to encompass emerging technology and reviewed regularly.
- PolicyTool is a good place to start if you need to craft a social media policy.
Internet Marketing for Lawyers
- Good judgment is essential when using social media.
- Marketing via the Internet should comply with ethical rules regarding advertising, solicitation, and the unauthorized practice of law:
- Real-time electronic contact is specifically prohibited by ABA Model Rule 7.3(a).
- Web sites and blogs should specifically state the jurisdictional limits of the attorney’s practice to avoid UPL issues.
- Content should be current, accurate, and subject to substantiation.
- Content should not create false expectations.
- Jurisdictions vary. Know the rules of your specific state(s).
Facebook and MySpace
- Review your privacy settings, checking all sections and subsections. Perform this review on a regular basis, as social media providers change settings frequently.
- As with any Web site, use strong passwords or better yet, a pass phrase, and change it from time-to-time.
- Take control of what “friends” or “friends of friends” may post about you, especially when tagging you in photographs.
- Limit use of games or third party applications that access your personal profile.
- “Friending” judges before whom you appear is probably best avoided. In Florida, judges are specifically prohibited from “friending” lawyers who appear before them to avoid the appearance of impropriety: Florida Supreme Court Judicial Ethics Advisory Committee Opinion Based on: Florida Canon 2B.
- Use of LinkedIn’s “specialties” may be problematic. Research your jurisdiction. If necessary, use a disclaimer or leave this area of your profile blank.
- Also proceed cautiously with regard to client recommendations. Since all LinkedIn recommendations must be approved by the user, use this opportunity to correct any content that may run afoul of the rules. For example, it may be necessary to ask the client to add disclaiming language or delete content that constitutes an inappropriate comparison.
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