HIRING IN A BLOG-FILLED, GOOGLE WORLD - R. Lance Witcher and Shelly L. Freeman Presented By

HIRING IN A BLOG-FILLED,
GOOGLE WORLD

Missouri Bar Seventh Annual Labor & Employment Law
Symposium

Presented By:
R. Lance Witcher and Shelly L. Freeman

•   Teacher Denied Education Degree
    Because of Photo on MySpace Page
    Captioned “Drunken Pirate”.

•   Delta Airlines Flight Attendant Fired for
    Provocative Pictures on Personal
    Website.

•   Arlington, Oregon Mayor Recalled
    Because of Lingerie Photo on MySpace
    page.

What’s Out There?

  Social Networking Sites: Facebook, MySpace,
     Friendster.
      Over 100 million people in U.S. have a social
         network site
      Public and Restricted Access
    Web Logs – “Blogs”

        26.4 million in the U.S. alone

    Other Internet Sites

Information Contained – Good, Bad or
Both?
   Race                        Religion

   Gender                      Children

   Family                      National Origin

   Political Views
                                Sexual Orientation
   Controversial Opinions      Age

Information Contained – Good, Bad or
Both? (Cont’d)

   Drug Use                Marital Status

   Alcohol Abuse           Prior Lawsuits

   Alcoholism              Prior Charges

   Arrest Information      Bigotry

   Criminal History        Worker’s Comp Claims

Information Contained – Good, Bad or
Both? (Cont’d)
   Whistleblowing             Sexual Content

   Periods of                 Harassment of
    Unemployment                Co-Workers

   Disclosure of Prior        Gender Identity
    Employer’s Secrets
                               Defamation of
                                Employers, Clients, or
   Employer Bashing            Third Parties

   Employee Bad Mouthing      Negativity

Information Contained – Good,
Bad or Both? (Cont’d)
   Tobacco Use                  Psychiatric Issues

   Other “Lawful Out of         Medical History
    Work Activities”

   Records of Disabilities      Medications

   Health Issues

Do You Really Want to Utilize This
Information?

     Pros
      - Critical Decision.
      - Invaluable Information about Character.
      - Far Easier to Avoid a Bad Hire than to Get
        Rid of a Bad Hire.
      - Failure to Hire Suits Much Less Likely Than
        Suits Over Termination.
      - Avoid Negligent Hiring Claim.

   Cons
    - Pregnant with Information Impermissible to
      Consider.
    - Taint Otherwise Well-Based Decision.
    - Tempt Decision on Improper Information.
    - Make Decision on Incorrect Information.
    - Increase Likelihood of Litigation.
    - Bad Publicity.

Risks Associated With Use of
    Employee Cyberspace Activity
   Federal Statutory Restrictions
        FCRA, NLRA/RLA, Anti-Discrimination Statutes, SCA,
         Bankruptcy Act.

   Missouri Statutory Restrictions
        Parallel Anti-Discrimination Laws.
        State Specific Laws establishing or regulating
         possible searches of protected categories.

   City Ordinances

Recommendations
1.   Informed Decision on Use of Internet
     Searches for Applicants.

    Know the Pros and Cons.

    Make an Effort to Minimize the Use of
     Impermissible Information.

    Make Effort to Verify Factual Information
     Before Basing a Decision on it.

2.   Include Release/Authorization in Applications/
     Policies.

    Should Include Express Authorization to Visit Sites
     as a Proxy for the User.
    Should Include Express Understanding that the
     Employee has no Further Privacy Interest in any
     Information Posted on Even Password Protected or
     User-Only Sites.
    Should Require Providing all Applicable
     Passwords and Other Information.
    Should at least Attempt to Contain
     Indemnification and Release

3.   Don’t be cute.

    Do not try to access or break into any site that you
     have not been provided authorization to access.
    Do not falsify information or impersonate another
     individual in order to attempt to obtain access.

4.   Retention of Information.

    Because you are opening the door to
     impermissible information, important to retain all
     permissible information on which you are basing
     any employment decision.
    Retain your search information so you cannot be
     accused of accessing information you did not.
    Retain information on the efforts you made to
     avoid accessing or using impermissible
     information.

Recommendations (Cont’d)
5.   Focus on Job-Relatedness of Information.

    Have defined search criteria.
    Have a list of the type of information you are looking for.
    Have a list of the information you do not intend to look
     at or use.
    Give specific instructions to the searcher not to dig into
     inadmissible information.
    Be very careful about documenting the information that
     you did and did not see.
    Do not retain information in your employee’s file that
     would be impermissible in the hiring process.
    Be prepared to use this “script” later in litigation.

6.   Ensure Right Person Is Involved.

    Don’t task this to someone who is not qualified and
     doesn’t have the right information.

    Should be an HR professional trained in these
     kinds of searches if possible.

7. Evaluate Use of Third Party to Conduct Searches.

   Pros Include
       Ability to limit what information is provided back to
        you.
       Ability to avoid learning about impermissible
        information.
       Potential ability to simply receive a pass or fail
        decision.

   Cons Include
       Lack of Control over search.
       Inability to obtain some information you may want.
       Difficulty in defining what would be pass or fail.
       Fair Credit Reporting Act obligations.

8. Consistently Apply Search.

   Consistency, always important, are now even more
    critical.

   You are accessing information you would
    otherwise never have obtained.

   Be consistent in your decision making criteria.

   Be consistent in your search criteria.

9. Check Terms and Conditions of Website Being
   Accessed.

   Do not violate the terms of a site in order to access
    information.

   Obtain appropriate information from your applicant.

10. Increased Support for Job Actions.

   Consider having a first wave screening and culling
    out those obviously unqualified applicants.

11.     Time of Search – Pre-Offer/Post Offer.

   Pros of Post Offer Include
      Ability to avoid tainting otherwise well-based
       decisions on people you have no intention of
       hiring.
   Cons Include
      Focusing the applicant on the reason for the
       decision and potentially leading increased
       likelihood of litigation due to yanking of
       job offer.