National Association of Colleges and Employers

Legal Issues of Social Networking

Jeffrey S. Stewart, Esq

YOUTUBEYOUTUBEVideo sharing networkVideo sharing network

MYSPACEMYSPACEEstimated over 100 million Estimated over 100 million

membersmembers

FACEBOOKFACEBOOK LinkedInLinkedIn

Focus on professional Focus on professional

networking networking

BloggingBlogging

WHAT IS SOCIAL NETWORKING?WHAT IS SOCIAL NETWORKING?

Benefits for ApplicantsBenefits for Applicants

Locate employment Locate employment opportunitiesopportunities

Market oneself to Market oneself to potential employerspotential employers

Gain access to Gain access to employer informationemployer information

Connects employeesConnects employees

Attracting new “talent”Attracting new “talent” Generating businessGenerating business Screening potential Screening potential

employeesemployees

Benefits for EmployersBenefits for Employers

Attracting New TalentAttracting New Talent

Market directly to Market directly to universities, student groups universities, student groups or possible applicants or possible applicants – Opens new doors to recruiting Opens new doors to recruiting

Interact with potential Interact with potential employees employees – Provide information and Provide information and

answers to questionsanswers to questions

More information than More information than resume sharing sitesresume sharing sites

How do employers use it?How do employers use it? Get information straight from the Get information straight from the

sourcesource– PicturesPictures– ProfileProfile– Comments and background Comments and background

informationinformation Used in conjunction with resume Used in conjunction with resume

posting sitesposting sites Free and easyFree and easy Pre-interview of potential Pre-interview of potential

employeesemployees Eliminated without consideration Eliminated without consideration

- - watch a job go up in smoke!- - watch a job go up in smoke!

Is it legal? Is it legal? Example:Example:– XYZ Corporation searches XYZ Corporation searches

all of its potential all of its potential candidates on the internet candidates on the internet prior to bringing the prior to bringing the individualsindividualsin for an interview. This in for an interview. This includes reviewing an includes reviewing an individual’s Myspace individual’s Myspace and/or Facebook pages. and/or Facebook pages. They obtain the following They obtain the following applicants. applicants.

Is it LegalIs it Legal Fair Credit Reporting ActFair Credit Reporting Act

– Requires authorization and Requires authorization and disclosure to applicant prior disclosure to applicant prior to using third party to obtain to using third party to obtain background information.background information.

Is the FCRA applicable here…Is the FCRA applicable here…probably not!probably not!– Legal to use posted Legal to use posted

information to screen information to screen candidatescandidates

– No right to privacy on your No right to privacy on your posted informationposted information

– Is it private if you “mark” it Is it private if you “mark” it private?private?

BUT IT’S ALL HARMLESS…RIGHTBUT IT’S ALL HARMLESS…RIGHT

What is the limit to What is the limit to access?access?

Hard to control Hard to control information and postsinformation and posts

False personal False personal websites - - lead to websites - - lead to false identification by false identification by employeremployer

The “drunken pirate”The “drunken pirate” Is this picture Is this picture

“unprofessional”“unprofessional” According to According to

Millersville University Millersville University School of School of Education…YES!Education…YES!

University of Texas University of Texas football player posted football player posted racially derogatory racially derogatory Facebook messageFacebook message

Freedom of speech? Freedom of speech? No…kicked off of teamNo…kicked off of team

DiscriminationDiscrimination

Information can illegally Information can illegally “screen” a candidate out“screen” a candidate out– Protected informationProtected information– Other personal informationOther personal information

What is the individual’s What is the individual’s connection to other connection to other “groups” of people“groups” of people

Protected InformationProtected Information

What is “protected information”?What is “protected information”?– Title VII, Americans with Disabilities Act, Age Title VII, Americans with Disabilities Act, Age

Discrimination in Employment Act, State Anti-Discrimination in Employment Act, State Anti-Discrimination LawsDiscrimination Laws Sexual preference, ethnicity, religious views, political Sexual preference, ethnicity, religious views, political

preferencespreferences

– Individual may be subject to discrimination Individual may be subject to discrimination without ever knowing itwithout ever knowing it

– Employer may face liabilityEmployer may face liabilityfor its actionsfor its actions

Marital statusMarital status Financial informationFinancial information Geographic preferenceGeographic preference All information that can All information that can

potentially “screen” an potentially “screen” an applicant out of an applicant out of an employment opportunityemployment opportunity

Posting confidential Posting confidential informationinformation

Discrimination, Discrimination, harassment, harassment, defamationdefamation

Violent remarks, Violent remarks, threats, intimidationthreats, intimidation

Disloyalty or Disloyalty or insubordinationinsubordination

InternetInternet E-MailE-Mail Employer-Provided Cell Phones/Handheld Employer-Provided Cell Phones/Handheld

DevicesDevices– Can They Monitor Cell Phone Usage?Can They Monitor Cell Phone Usage?

Text Messages? Text Messages?

What Do/Can Employers What Do/Can Employers Monitor?Monitor?

ExamplesExamples

Amy Burch and HarvardAmy Burch and Harvard– ““I am one shade lighter than homicidal today”I am one shade lighter than homicidal today”

Jessica Zenner and Nintendo Jessica Zenner and Nintendo – One plus about working with [a] hormonal, One plus about working with [a] hormonal,

facial-hair-growing, frumpy [woman] is that I facial-hair-growing, frumpy [woman] is that I have found a new excuse to drink heavily...have found a new excuse to drink heavily...

Should these employees be subject to Should these employees be subject to disciplinary action?disciplinary action?

Avoiding LiabilityAvoiding Liability Potential Liability For Potential Liability For

Employee Technology AbuseEmployee Technology Abuse– Claims by employees:Claims by employees:

Harassment, Harassment, discrimination, etc… discrimination, etc…

Employee Postings on an Employee Postings on an Electronic Bulletin BoardElectronic Bulletin Board SeeSee Blakey v. Continental Blakey v. Continental

Airlines, Inc., 751 A.2d 538 Airlines, Inc., 751 A.2d 538 (N.J. 2000).(N.J. 2000). Employer liable for Employer liable for

comments on workplace comments on workplace e-bulletin boarde-bulletin board

Claims by Non-Employees Claims by Non-Employees Doe v. XYC, Corp., Doe v. XYC, Corp., 887 A.2d 1156 (N.J. Super. 887 A.2d 1156 (N.J. Super.

App. Div. 2005).App. Div. 2005).– Facts:Facts:

Employer has a policy in place to monitor employee Employer has a policy in place to monitor employee internet usageinternet usage

An employee utilizes the workplace computer to An employee utilizes the workplace computer to access pornography (including child pornography)access pornography (including child pornography)

The employee posts nude pictures of a minor over The employee posts nude pictures of a minor over the internet while at work. the internet while at work.

The employer was aware of this conduct. The employer was aware of this conduct. The minor’s mother sues the employer.The minor’s mother sues the employer.

Is the employer liable?Is the employer liable?

YES!!YES!! Employer has a duty Employer has a duty

to:to:– InvestigateInvestigate– ReportReport– Take Action…orTake Action…or– Face LiabilityFace Liability

IS MONITORING LEGAL?IS MONITORING LEGAL?

What is a wrongful What is a wrongful search?search?– Standard for a Private Standard for a Private

EmployerEmployer Intrusion on the Intrusion on the

solitude of the solitude of the employee; employee;

Highly offensive; andHighly offensive; and Reasonable Reasonable

Expectation of Expectation of PrivacyPrivacy

Is Monitoring Legal?Is Monitoring Legal?- Internet and E-MailInternet and E-Mail

- No Reasonable Expectation No Reasonable Expectation of Privacyof Privacy

Employer provided services Employer provided services and/or equipmentand/or equipment

Not Substantial or Highly Not Substantial or Highly OffensiveOffensive– Courts have held that Courts have held that

monitoring e-mail and monitoring e-mail and internet usage is not a internet usage is not a substantial intrusion nor is it substantial intrusion nor is it considered highly offensive considered highly offensive to the employee.to the employee.

Other Monitoring IssuesOther Monitoring Issues Confidential Confidential

InformationInformation– Disclosure of Trade Disclosure of Trade

SecretsSecrets Who is the Employee Who is the Employee

talking to?talking to?

Evidence In Lawsuits Evidence In Lawsuits Against Employer or Against Employer or EmployeeEmployee

Waive attorney/client Waive attorney/client privilege privilege

Followed policyFollowed policy

What Should Employers DoWhat Should Employers Do

Be careful if using social networking sites to Be careful if using social networking sites to screen applicantsscreen applicants

Develop detailed social Develop detailed social networking/electronic data policynetworking/electronic data policy

Make it clear to employees that their actions Make it clear to employees that their actions outside of the workplace can harm them outside of the workplace can harm them inside of the workplaceinside of the workplace