Social Media in Recruitment and the Workplace

1. Social Media in Recruitment and the Workplace By Eric D. Bentley Associate General Counsel University of Houston System

2. Social Media Blunders • New Jersey Nurse posts Facebook comment implying the paramedics who responded to a shooting should have let the gunman die. • Virginia Sheriff fires six co-workers for “liking” his opponent in the upcoming election on Facebook.

3. Social Media Blunders • Sam’s Club employees attend company picnic on evening of July 4th and post pics on Facebook. • The employees had called in sick to work that day. • Supervisor responds by posting responses on Facebook singling the employees out by name and calling them cheaters.

4. Social Media Blunders • Applicant tweets: “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” • Cisco Responds: “Who is the hiring manager? I’m sure they would love to know you will hate the work. We here at Cisco are versed in the web.”

5. Social Media Blunders • Two Domino’s employees post YouTube video of them spitting in food, etc.

6. Social Media Blunders

7. Would you ask these interviewquestions? • Where were you born? • Are you married? • What is your sexual orientation? • Are you pregnant?Are you planning to have a baby soon? • Is there a history of heart disease in your family? 6) Where do you go to church? 7) Are you an alcoholic? 8) Are you bipolar? 9) Have you ever attempted to form a union? 10) How old are you?

8. Would you want to know this about an applicant? • He collects guns and says he will “go postal” if anyone crosses him at work. • He says he supports L.A. Clippers Owner Donald Sterling and doesn’t think he should be forced to work with African-Americans. • She brags about calling in sick to work once a month to go shoe shopping. • He cross dresses on the weekend. 5) She is an orthodox Jew

9. 7 Pitfalls of Using Social Media to Check Backgrounds of Applicants Pitfall #1 - Only performing social media background checks on certain applicants. • Would it be okay to require a bachelor’s degree only for Hispanic employees? • Inconsistent social media checks could create legal liability. • Even if not intentional, electronically stored information could reveal: • Hiring manager only reviewed the social media profiles of 10 applicants with Hispanic sounding names and hired a White employee.

10. 7 Pitfalls of Using Social Media to Check Backgrounds of Applicants Pitfall #2 - Inconsistently reviewing social media postings or taking into account an applicant’s protected status. • Disparate Treatment Claim under Title VII • Meta data reveals hiring manager only spends 15 seconds viewing African-American applicants Facebook pages but 5 minutes viewing White applicants Facebook pages.

11. 7 Pitfalls of Using Social Media to Check Backgrounds of Applicants Pitfall #2 (Cont’d) - Inconsistently reviewing social media postings or taking into account an applicant’s protected status. • Disparate Impact Claim under Title VII • 71 Percent of Twitter users, 78 percent of Facebook users , and 85% of LinkedIn users are White. • Must be able to justify why social media posting would disqualify employee for job sought. Similar to criminal background checks.

12. 7 Pitfalls of Using Social Media to Check Backgrounds of Applicants Pitfall #3- Taking into account an applicant’s concerted activities or union activities. • Concerted activities – communications about work conditions with no intent to organize. • NLRA would prohibit refusing to hire an applicant whose Facebook page says, “Supervisor Jones just lectured me on how to use the grinder…he has been riding me all week. Tell me if you have had the same experience.”

13. 7 Pitfalls of Using Social Media to Check Backgrounds of Applicants Pitfall #3(Cont’d) - Taking into account an applicant’s concerted activities or union activities. • Union activities – communications with intent to organize a union. • NLRA would prohibit refusing to hire someone who tweets, “Nailed the interview. If I get hired, I will help us form a union and we will be making $25 per hour by summer!”

14. 7 Pitfalls of Using Social Media to Check Backgrounds of Applicants Pitfall #4 - Hiring a third party to perform the screening but failing to follow the Fair Credit Reporting Act. • FCRA applies to social media background checks the same way as criminal history checks. • If third party performs and you do not hire due to social media check, you must: 1) Inform the applicant that you intend to not hire him/her based, in part, on social media.

15. 7 Pitfalls of Using Social Media to Check Backgrounds of Applicants Pitfall #4 (Cont’d) - Hiring a third party to perform the screening but failing to follow the Fair Credit Reporting Act. 2) Provide the applicant a copy of the social media postings. 3) Send applicant notice of FCRA rights. 4) Allow applicant opportunity to respond before final decision is made.

16. 7 Pitfalls of Using Social Media to Check Backgrounds of Applicants Pitfall #5 - Requiring applicants to divulge their social media passwords. • Some states’ laws prohibit this. • Could be violation of Stored Communications Act. • Could be common law privacy violation.

17. 7 Pitfalls of Using Social Media to Check Backgrounds of Applicants Pitfall #6 - Failing to disqualify an applicant whose postings indicate they would be a threat to other employees. • No duty to perform social media check, but if you do, it must be done thoroughly. • Negligent hiring claim. • ER knowingly hires EE who is unfit • Hiring the EE created unreasonable risk of harm.

18. 7 Pitfalls of Using Social Media to Check Backgrounds of Applicants Pitfall #7 - Taking into account social media postings considered protected speech under the 1st Amendment. • Applies only to public universities and colleges.

19. First Amendment Basics • Constitutional freedoms and protections (e.g., 1st Amendment) onlyapply to federal or state action • What is state action? Can be formal such as state law enacted by state legislature • Can be almost any type of expressive activity. • Even includes non-verbal expression. • Definitely also includes social media activity

20. 1st Amendment and Social Media Forum Analysis • Courts are viewing social media activity as “off-campus speech” and are hesitant to allow restrictions based on content: LaySchock v. Hermitage Sch. Dist. 650 F.3d 205 (3rd Cir. 2011) • Student creates fake social media profile for principal. “It would be…a dangerous precedent to allow the state…to reach into a child’s home and control his/her actions [of being online] to the same extent that it can control the child when he/she participates in school sponsored activities.”

21. 1st Amendment and Social Media Permissible Restrictions Even though social media activity is “free speech” it is okay to place reasonable time, place, and manner restrictions on it such as: • No social media during working hours unless on break. • No social media during official office functions.

22. 1st Amendment and Social Media BUT DO NOT: • Completely ban the use of social media by your employees. • Burdens more speech than is necessary to achieve purpose. • This is too broad even for sex offenders! See Doe v. Prosecutor, Marion County Indiana 705 F.3d 694 (7th Circuit, 2013) • Indiana law prohibited convicted sex offenders from using social media. (FB Also prohibits this) • 7th Circuit held law violated First Amendment. • “It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.”

23. 1st Amendment and Social Media DO NOT: • Take disciplinary action based on the content of a social media posting unless it falls into a category of “unprotected speech.” “Unprotected speech” is speech/expressive activity that loses First Amendment protection based on its content. = Employee can be disciplined for content of social media posting

24. 1st Amendment and Social Media Unprotected Speech (i.e., Okay to Discipline): • Fighting Words / True Threat • But See J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002) • Court determined the following was a “misguided attempt at humor or parody” but not a true threat - Website depicted drawing of principal with head cut off, blood dripping from neck, caption of “Why should I die?” and requesting $20 to go toward hit man to kill principal.

25. 1st Amendment and Social Media Unprotected Speech (i.e., Okay to Discipline): • Defamatory Statements • Public posting that is false and damaging to one’s reputation. • Employee falsely posts on Facebook that her co-worker is a sex offender and has aids.

26. 1st Amendment and Social Media Unprotected Speech (i.e., Okay to Discipline): • Obscenity • Must depict or describe sexual conduct and must lack serious literary, artistic, political, or scientific value. • Would any of these be considered obscenity?

27. 1st Amendment and Social Media Unprotected Speech (i.e., Okay to Discipline): • Violation of Criminal Law • Violation of reasonable University policies

28. 1st Amendment and Social Media Unprotected Speech (i.e., Okay to Discipline): • Harassing Speech • (e.g., EE posts sexually harassing comments about another EE). • Balancing act with First Amendment and other laws including Title VII. • First Amendment – liability for regulating protected speech. • Title VII – liability for failing to take prompt remedial action for sexual harassment even if protected speech. Must meet severe and pervasive standard. • Recommendation: Refer to appropriate department on campus to investigate and take appropriate action.

29. 1st Amendment and Social Media Unprotected Speech (i.e., Okay to Discipline): • Speech as a Public Employee • Garcetti v. Ceballos, 547 U.S. 410 (2006)

30. Questions?