Social Media Dominance

Social Media Survival Guide:

Hiring and Firing in the Era of Social Media

Social Media Dominance

26.7% - Percentage of online time spent by U.S. internet users on social networking sites

– Steadily increasing every year

5.0% - Percentage of online time spent by U.S. internet users on e-mail

– Steadily decreasing every year

Used to be 85% of social networking on Facebook ...

Social Media Dominance

How is this impacting employers?



Loss of productivity



Use of company resources



Potential liability!

Issue #1: On-Line Recruiting

 94% of recruiters use or plan to begin using social networks / media for recruiting

 73% plan to invest more in recruiting through

social networks

 78% of recruiters have hired through a social network

On-Line Recruiting

 43% of respondents

had checked applicants’ social networking sites

(up from 39% in 2013, 36% in 2012)

 51% of this group responded

that they did not hire the person based on what they found

(up from 43% in 2013, 34% in 2012)

CareerBuilder (June 2014)

Recruiting Issues



Discovery of information not

otherwise known (e.g., posts

revealing disability)



Inconsistent use of the

resource



Lack of uniform application



Implicit bias against certain

groups

Policy Options

1. Provide notice and ask for permission

2. Access without notice but provide

an opportunity to respond

3. Access without notice and provide

no opportunity to respond

4. Do not access at all

Issue #2: On-Line Background

Checks

Natalie Boyce has downloaded the background

check app, “Been Verified,” to her iPhone. After

interviewing Tom Jones, she checks Jones’

criminal history, finds two convictions, and

prepares a negative review of him.

Boyce’s employer is exposed to potential liability

under the Fair Credit Reporting Act if it relies on

Boyce’s negative review to reject Jones’ job

application

Fair Credit Reporting Act

 Prohibits employers from obtaining criminal

history on a job applicant from a “Consumer

Reporting Agency” (CRA) without providing notice to the subject and obtaining the subject’s consent

– CRA = A third party who, for a fee, assembles information bearing upon a consumer’s credit

worthiness, character, general reputation, or mode of living

 Employer that relies on a report from a CRA must

provide pre-adverse action notice and final adverse action notice in connection with any adverse employment action

Recommended Policy

Prohibit employees from

conducting any form of

background check

Background checks may

be conducted only

through the employer’s

authorized vendor

Issue #3: Harassment/Hostile

Work Environment

When do private, off-duty acts by employees put an employer at risk?

Key facts:

 White police officers operated Domelights.com, a racist website, and posted racially offensive comments while on and off duty

 Police Department managers allegedly ignored complaints about the website

 Plaintiff alleged the Philadelphia Police Department created a racially hostile work environment by allowing it

Guardian Civic League v. Philadelphia Police Dept., No. 2:09-CV-03148-CMR

(E.D. Pa.) (filed July 15, 2009)

Harassment/Hostile

Work Environment

Key facts:

 Pilots posted allegedly harassing, false, and defamatory comments about a female pilot on the “Crew Members Forum,” an electronic bulletin board

Finding:

– Harassment by a supervisor that takes place outside of the workplace can be actionable

– An employer who fails to prevent and promptly correct offending behavior in a workplace may be directly liable for harassment suffered by its employee at the hand of another employee, and also may be liable for the co-employee's harassment under an agency theory

Harassment/Hostile

Work Environment

Things to Consider:

– Does management know about the postings, or should it have known?

– Is the activity an extension of a pattern of harassment in the workplace?

– Does the employer derive any benefit from the social media activity?

Issue #4: First Amendment

Protections For Employees?

First Amendment provides limited protection for public employees

– Court dismissed claim by teacher that her demotion, which was based on publicly available blog posts containing “highly personal and vituperative comments” about the school district and her coworkers, violated the First Amendment

– Teacher’s speech was not protected because it disturbed co-worker relations and interfered with teacher’s

performance of her duties

CA’s Lawful Off-Duty Conduct Law

 Generally prohibits demotion, suspension, or

termination for lawful off-duty conduct away from the employer’s premises

 Employers are restrained from discriminating or retaliating where the conduct itself is protected by the CA Constitution or the Labor Code

 Sole remedy = Labor Commissioner may advance a claim for lost wages, penalty of up to $10,000

Cal. Labor Code §96(k)

Issue #5: Do Employers Have A Duty To

Monitor Employees’ Off-Duty Social Media

Activity?

Key Facts:

 Security guard took photos of female employees from customer’s computer system, ejaculated on them, and posted them on an adult web site

Finding:

$1.4 million judgment against security company reversed

– Court: “Employers have no duty to supervise employees’ private conduct or to persistently scan the worldwide web to ferret out potential employee misconduct.”

Monitoring Employees’ Social Media

Activities

“Social Sentry,” a software-as-a-service product launched in April, provides alerts of employee activity on

Facebook, LinkedIn, Twitter, and YouTube.

Selected employee or the entire workforce

Keyword searches

Issue #6: Can An Employer Access

A Restricted Profile?

Key Facts:

 Houston’s employee creates a group MySpace page

 Purpose: “To vent about any BS while at work without any outside eyes spying in on us”

 Houston’s managers asked hostess for her password

 Two group members are fired

Illegal Hacking?

Claims: Violation of Stored Communications Act, Invasion of Privacy against Houston’s

Result: Verdict for employees on SCA claim, but for Houston’s on Invasion of Privacy claim

Jury Questionnaire:

1. Managers knowingly accessed the group page without employees’ authorization

2. The group page was private, but plaintiffs had no reasonable expectation of privacy in their statements

Gaining Access To Restricted Sites



Ask reporting employee

to provide screen shots



Ask reporting employee

to execute voluntary

consent form

Issue #7: Who Is Your Friend?

What should employers do about managers’ “friending”

subordinates?

Policy Recommendations:

Managers should not send “friend” requests to subordinates

Any employee may reject any friend request without retaliation

Issue #8:

LinkedIn Recommendations

Current employee provides recommendation to former colleague who left the company on bad terms or was terminated for poor performance

Policy Options

1. Prohibit all recommendations unless in personal capacity

2. Prohibit recommendations by anyone who reviewed the requestor’s

performance

3. Permit recommendations only for former employees who left voluntarily 4. Recommend anyone about whom you

have nothing negative to say; be accurate complete and truthful

Issue #9: Accessing A Terminated

Employee’s Social Media Account

Scenario No. 1:

Employee returns company-issued laptop. Icon on desktop permits direct access to

Facebook account.

Scenario No. 2:

Terminated employee leaves the workplace with her

Potential Claims:

 Violation Federal Stored Communications Act

 If employee has adjusted privacy settings  Violation of Federal Wiretap Act

 If employee is in chat during employer’s access

Issue #9: Accessing A Terminated

Employee’s Social Media Account

Note: Employer’s access may leave a record on employee’s

social media page

Issue #10: Discovery Of Former

Employee’s Social Media Activity

1. Check publicly available presence on Web 2.0 2. Obtain access to restricted sites through

“friends” of the plaintiff

3. Send a litigation hold letter to the plaintiff covering social media activity

4. Serve discovery request on plaintiff 5. Subpoena social media sites

THANK YOU