National Association of Colleges and Employers Legal Issues of Social Networking Jeffrey S. Stewart, Esq

 YOUTUBE Video sharing network  MYSPACE Estimated over 100 million members  FACEBOOK  LinkedIn Focus on professional networking  Blogging WHAT IS SOCIAL NETWORKING?

Benefits for Applicants  Locate employment opportunities  Market oneself to potential employers  Gain access to employer information  Connects employees

 Attracting new “talent”  Generating business  Screening potential employees Benefits for Employers

Attracting New Talent  Market directly to universities, student groups or possible applicants –Opens new doors to recruiting  Interact with potential employees –Provide information and answers to questions  More information than resume sharing sites

 How do employers use it?  Get information straight from the source –Pictures –Profile –Comments and background information  Used in conjunction with resume posting sites  Free and easy  Pre-interview of potential employees  Eliminated without consideration - - watch a job go up in smoke!

 Is it legal? Example: –XYZ Corporation searches all of its potential candidates on the internet prior to bringing the individuals in for an interview. This includes reviewing an individual’s Myspace and/or Facebook pages. They obtain the following applicants.

Is it Legal  Fair Credit Reporting Act –Requires authorization and disclosure to applicant prior to using third party to obtain background information.  Is the FCRA applicable here…probably not! –Legal to use posted information to screen candidates –No right to privacy on your posted information –Is it private if you “mark” it private?

BUT IT’S ALL HARMLESS…RIGHT

 What is the limit to access?  Hard to control information and posts  False personal websites - - lead to false identification by employer

 The “drunken pirate”  Is this picture “unprofessional”  According to Millersville University School of Education…YES!

 University of Texas football player posted racially derogatory Facebook message  Freedom of speech? No…kicked off of team

Discrimination  Information can illegally “screen” a candidate out –Protected information –Other personal information  What is the individual’s connection to other “groups” of people

Protected Information  What is “protected information”? –Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act, State Anti- Discrimination Laws  Sexual preference, ethnicity, religious views, political preferences –Individual may be subject to discrimination without ever knowing it –Employer may face liability for its actions

 Marital status  Financial information  Geographic preference  All information that can potentially “screen” an applicant out of an employment opportunity

 Posting confidential information  Discrimination, harassment, defamation  Violent remarks, threats, intimidation  Disloyalty or insubordination

 Internet   Employer-Provided Cell Phones/Handheld Devices –Can They Monitor Cell Phone Usage?  Text Messages? What Do/Can Employers Monitor?

Examples  Amy Burch and Harvard –“I am one shade lighter than homicidal today”  Jessica Zenner and Nintendo –One plus about working with [a] hormonal, facial-hair-growing, frumpy [woman] is that I have found a new excuse to drink heavily...  Should these employees be subject to disciplinary action?

Avoiding Liability  Potential Liability For Employee Technology Abuse –Claims by employees:  Harassment, discrimination, etc… Employee Postings on an Electronic Bulletin Board See Blakey v. Continental Airlines, Inc., 751 A.2d 538 (N.J. 2000). See Blakey v. Continental Airlines, Inc., 751 A.2d 538 (N.J. 2000).  Employer liable for comments on workplace e-bulletin board

 Claims by Non-Employees  Doe v. XYC, Corp., 887 A.2d 1156 (N.J. Super. App. Div. 2005). –Facts:  Employer has a policy in place to monitor employee internet usage  An employee utilizes the workplace computer to access pornography (including child pornography)  The employee posts nude pictures of a minor over the internet while at work.  The employer was aware of this conduct.  The minor’s mother sues the employer. Is the employer liable?

 YES!!  Employer has a duty to: –Investigate –Report –Take Action…or –Face Liability

IS MONITORING LEGAL?  What is a wrongful search? –Standard for a Private Employer  Intrusion on the solitude of the employee;  Highly offensive; and  Reasonable Expectation of Privacy

Is Monitoring Legal? -Internet and -No Reasonable Expectation of Privacy Employer provided services and/or equipment  Not Substantial or Highly Offensive –Courts have held that monitoring and internet usage is not a substantial intrusion nor is it considered highly offensive to the employee.

Other Monitoring Issues  Confidential Information –Disclosure of Trade Secrets  Who is the Employee talking to?  Evidence In Lawsuits Against Employer or Employee  Waive attorney/client privilege  Followed policy

What Should Employers Do  Be careful if using social networking sites to screen applicants  Develop detailed social networking/electronic data policy  Make it clear to employees that their actions outside of the workplace can harm them inside of the workplace