Hidden Risks of Using Facebook, MySpace, and Other Websites to Scope Out New and Prospective Hires

1. Hidden Risks of Using Facebook, MySpace, and Other Websites to Scope Out New and Prospective Hires Anthony J. Zaller, Esq. Van Vleck Turner & Zaller Website: www.vtzlaw.com Blog: www.vtzlawblog.com

2. Social Networking Sites Facebook • Founded in 2004 • 7th most visited Web site in the world • 62 million individual profiles inside the site • # 1 site in the world for photos, with more than 14 million new images uploaded every day Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

3. Social Networking Sites MySpace • Founded in 1999 • 6th most visited Web site in the world • A reported 300 million accounts inside the site Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

4. Search Sites Google • Founded in 1996 • 2nd most visited Web site in the world Plus, many other sites around the Internet where potential applicants and current employees have posted their sensitive personal information! Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

5. Why Do HR ProfessionalsUse These Sites? Check the background of job applicants or current employees Identify possible candidates to approach about jobs Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

6. The Primary HR ChallengesWith These Sites • You could learn a lot more about a worker or a candidate than you should. Profiles on these sites can reveal lots of private information – ranging from sexual orientation to disabilities – for which you have no true employment-related reason to ask or search. Typically, your best legal defense is not knowing anything about these private details. But, that’s hard to argue if you’ve already seen a person’s Facebook or MySpace profile! Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

7. The Primary HR ChallengesWith These Sites • You can’t believe everything you see or read on these sites. People sometimes exaggerate in their social networking profiles, posts, and photos. In some cases, for example, students have put up fake MySpace or Facebook profiles pretending to be other people who are competing with them for jobs! You must remember that what you may see or read may be 100 percent false or wrong. Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

8. The Legal Risks Involved With Using These Sites for HR Purposes • Federal and State Discrimination Claims a. Searching only for Web profiles for certain applicants or workers (e.g., Asian-American candidates who responded to a specific job ad) b. Searching for Web information on all applicants or workers, but reaching conclusions about some individuals based on a discriminatory bias (e.g., reacting differently to a photo showing a worker at a “gay pride” event than photos of other workers in different social settings) Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

9. The Legal Risks Involved With Using These Sites for HR Purposes • Invasion of Privacy Claims Though you might argue that members of social networking sites have no fair expectations of privacy (since they’re posting a public profile!), some applicants or employees may claim that you’re overstepping your legal bounds as an HR manager by using profiles, photos, and other personal information found on the Internet in your workplace decisions. State Laws May Also Come Into Play • New York: Labor Code Section 201-d(2)(c) • California: Labor Code section 96 authorizing the Labor Commissioner to pursue on behalf of employees: “(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises." Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

10. The Legal Risks Involved With Using These Sites for HR Purposes • Fair Credit Reporting Act Violations (and similar state laws) If you use information gleaned from online profiles, for example, are you required to disclose that to candidates or employees if that information becomes the primary basis for terminating a worker or selecting a different applicant for a job? Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

11. The Legal Risks Involved With Using These Sites for HR Purposes • Terms of Service Violations Facebook, MySpace, and similar sites have “terms of service” posted on their pages that generally prohibit use of their content for “commercial purposes” (e.g., personnel screening). Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

12. Turn the Other Cheek:Positive Uses of Social Networking Sites for HR Purposes • Create a profile or a group on these sites for your company. Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

13. Turn the Other Cheek:Positive Uses of Social Networking Sites for HR Purposes • Create a profile or a group on these sites for your company. 2. Join geographic networks on these sites to promote job openings. Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

14. Turn the Other Cheek:Positive Uses of Social Networking Sites for HR Purposes • Create a profile or a group on these sites for your company. • Join geographic networks on these sites to promote job openings. 3. Purchase ads to promote job openings. Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445

15. Questions? Anthony Zaller, Esq. Van Vleck Turner & Zaller LLP 555 West Fifth Street, 31st Floor Los Angeles, CA 90013 213.996.8445 (phone) 213.996.8378 (fax) azaller@vtzlaw.com Anthony Zaller, Esq. - www.vtzlaw.com - 213.996.8445