Social Media Hypotheticals for HERC

Dancing on the Edge of a Volcano – Social Media Hypothetical Situations for New Jersey/Eastern Pennsylvania/Delaware Higher Education Recruitment Consortium presented by

Jonathan Segal, Esquire ©2010 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Baltimore | Boston | Washington, D.C. Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Princeton | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership

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Hypo 1 You have interviewed 3 candidates for a position. After the interviews, the manager for whom you are interviewing tells you that she does not want to consider candidate B. She does not tell you why but the reason is something she saw on the candidate’s social media site. 2

Analysis of Hypo 1 

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Legal risk if managers do social media checks on their own--they may not tell you why they are rejecting a candidate and they may reject based on protected status (e.g., Muslim) or protected activity (e.g., union advocacy). Recommend that you prohibit managers from doing social media checks on their own.

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Analysis of Hypo 1 (continued) 

Ironically, managers may be more likely to comply with the prohibition if they know HR is doing some social media checks as part of its background checks.

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Hypo 2 You google a candidate because your gut tells you that he is not being honest with you. You discover that he has two convictions for statutory rape.

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Analysis of Hypo 2 

Danger in selective “googling”—selectivity may be seen as bias; should be uniform policy

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Analysis of Hypo 2 

Even if uniform, don’t google in general or review social media sites in particular as part of initial screen; you may find out information about disability, race, ethnicity, age, etc. that may be seen as impermissible reason for rejecting candidate (even when it is not the reason).

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Analysis of Hypo 2 (continued) 

Recommend that you wait until after you interview and are considering finalists; at this point, you are less likely to learn EEO information that you don’t already know

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Analysis of Hypo 2 (continued) 

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If you consider criminal record based on Internet search (or any other information not on candidate’s own social media site), you need to verify. If use 3rd party to verify, you are subject to FCRA (authorization, pre-adverse action and adverse action) [and state laws, too].

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Analysis of Hypo 2 (continued) 

In this case, good argument that convictions relate to suitability for job, but no guarantee that EEOC (or state agency) would agree.

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Hypo 3 You have been asked to look for a faculty member in your Engineering Department. You have no female, African American or Hispanic tenured faculty members in the department. Your Affirmative Action Compliance Officer recommends that you review social media sites of potential candidates so that you can maximize the likelihood that you will have a diverse pool of (qualified) candidates to consider. 11

Analysis of Hypo 3 

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Cannot exclude individuals from consideration based on gender, race or ethnicity under any circumstances. Cannot give a “plus” based on gender, race or ethnicity, unless for “remedial purpose” narrowly defined.

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Analysis of Hypo 3 (continued) 

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Increase diversity of applicant pool by using social media sites geared toward “diverse” candidates. But do not check personal social media sites to determine diversity of candidates in deciding whom to interview.

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Analysis of Hypo 3 (continued) 

Targeted recruiting should be at same time as general recruiting for legal and employee relations reasons.

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Hypo 4 On his public Facebook page, a potential candidate for a management position posts a very revealing picture of himself wearing nothing but a thin thong.

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Analysis of Hypo 4   

Obviously, highly inappropriate. Effectiveness of candidate likely to be compromised. Can deny him a job.

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Analysis of Hypo 4 (continued)  

What if he were current employee? Most probably could take adverse action — “unprotected” posting.

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Analysis of Hypo 4 (continued) 

What if he were a union employee? Potentially more difficult to meet “just cause” standard because offensive/inappropriate behavior is “off duty.”

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Hypo 5 A female faculty member at another college posts a notice on a public bulletin board expressing her opinion that the college discriminates against female faculty relative to compensation. Can you consider this fact in deciding whether to hire her?

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Analysis of Hypo 5 

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This posting is protected by Title VII, regardless of whether it is true. So may be other postings that may be seen as disparaging, for example, whistleblowers. However, protection may be lost if false and malicious — individual posts statistics that are false and she knows it. In this case, employer cannot consider posting in deciding whether to hire her. 20

Analysis of Hypo 5 (continued) 

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If she were current employee, employer could not discipline her for it (or even ask her to remove it). However, there may be duty to investigate the allegations based on the knowledge.

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Hypo 6 A faculty member who is applying for a job posts on his blog information about a student. He does not mention the student by name but he disparagingly refers to “a student of privilege” in his class who has “no clue” on how much racial bias the generation preceding him had to overcome. 22

Analysis of Hypo 6   

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Highly inappropriate. May discourage students from communicating openly. If identity of individual reasonably can be ascertained, even more problematic — abuse of student; potential breach of agreement with student/family; FERPA. Legitimate reason not to hire — bad judgment. 23

Analysis of Hypo 6 (continued) 

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What about academic freedom of faculty member? Current employer’s issue; not yours. What if professor were your employee? If you are a private institution, it all depends on how you define academic freedom; reasonably can be defined to exclude disparaging students. 24

Analysis of Hypo 6 (continued) 

If you are a public institution, First Amendment considerations come into play. Focus: is this matter of public interest?

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Hypo 7 A recruiter wants to find out more about a potential candidate. He has been told by current employee, who is a close friend of candidate, that the candidate has robust and racey postings on MySpace. The recruiter asks his 5-year old nephew to help him hack into the candidate’s MySpace page which he does. 26

Analysis of Hypo 7 

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Hacking into individual’s social media site may give rise to liability for Intrusion Upon Seclusion (form of invasion of privacy). Hacking into individual’s social media site also may violate Stored Communications Act (part of Electronic Communications Privacy Act).

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Analysis of Hypo 7 (continued) 

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Less obvious — asking current employee for his or her password is problematic, too — employee may feel coerced to say yes. If employee shares information with you about what they have seen on someone else’s social media site, ask them to share it with you, but don’t ask to go into their site with their password. 28

Hypo 8 There is a glowing article in the Chronicle about Volcano. You post the article on Volcano’s Facebook page so that prospective students and employees can see it.

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Analysis of Hypo 8 

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Intellectual property rights apply to social media. Posting an article is copying it. If you need permission to copy, you need permission to post.

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Hypo 9 A male employee refers to a female colleague as a “fat ho” on his private Facebook page. An employee whom he has “friended” copies the posting and shares it with the employee about whom his friend has made the offensive comment.

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Analysis of Hypo 9 

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Social networking harassment is a real concern. Fact that intended to be “private” is no defense if about employees or they become aware of posting. Address not only in social media policy but also in harassment policy (and training).

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Hypo 10 A group of students do not like a recent transfer. They send her nasty text messages on a regular basis. On the average day, she receives between 10 and 20 text messages. The text messages do not relate to her gender, race or membership in any other protected group. But they are mean and insulting. 33

Analysis of Hypo 10 

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Even if not unlawful, it is cruel and unacceptable. At a minimum, textual harassment should not be permitted as matter of policy. Address with students in orientation; consider policy.

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Analysis of Hypo 10 (continued) 

Discuss with employees in terms of reporting to designated person(s) knowledge of potential textual harassment or bullying.

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Hypo 11 You ask for information about a prospective candidate on LinkedIn. The response you get is glowing.

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Analysis of Hypo 11 

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A reference is a reference no matter what medium is used to convey it. Yet, people often are willing to give references in the context of social media that may violate their employer’s policy. Moreover, these informal references may not be accurate. People think it is personal so more likely to stretch. 37

Analysis of Hypo 11 (continued) 

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Dangerous to rely on social media for reference checks. Confirm through more traditional medium. Now, think of your institution as the prior employer. Remind all employees of your policy on references — who can give them, what can (or cannot) be said. Keep in mind: personal references may give rise to personal liability.

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Hypo 12 A recruiter for Volcano posts on her personal blog all of the benefits of being an employee of Volcano. She does not mention on her blog that she is employed by Volcano.

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Analysis of Hypo 12 

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FTC guidelines state that, when posting promotional material, one must make clear his or her association with the organization, product or service he or she is promoting. In this case, we have promotional activity as defined by FTC. If you are posting promotional material, you must state your affiliation with your institution. Note: same principle would apply to recruiters for students.

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Hypo 13 A freshman asks you to “friend” her. You say yes and have access to her private Facebook pages. On one of her private Facebook pages, the student discusses the “great dope” that she has smoked.

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Analysis of Hypo 13 

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Risk in “friending” students — you may discover what you really don’t want to know; plus, the professional lines may blur. Do you have an obligation to do anything? Are you condoning the behavior if you say nothing? Probably not a legal obligation but parents and media may not see it that way if discovered later. 42

Analysis of Hypo 13 (continued)  

Be aware of risks. Organizations may wish to consider restrictions.

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Hypo 14 A recruiter and her administrative assistant develop a social media friendship. The recruiter is given access to the subordinate’s personal pages and learns that the subordinate is a recovering alcoholic. Later, she disciplines the subordinate.

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Analysis of Hypo 14 

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Risk in “friending” subordinate, too. In addition to blurring the lines of the relationship, you may discover EEO information about employee you are better off not knowing. Employee later may claim that the information was considered in making adverse employment action.

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Analysis of Hypo 14 (continued) 

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Risk particularly high for HR, which may play some role in most material adverse employment decisions. At a minimum, be aware of risks. Organizations may wish to consider restrictions. If restrictions, distinctions between professional and personal social media. 46

Thank you! ©2010 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Baltimore | Boston | Washington, D.C. Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Princeton | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership