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

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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

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Social Networking Sites

• 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

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Social Networking Sites

• Founded in 1999
• 6th most visited Web site in the world
• A reported 300 million accounts inside the site

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Search Sites

• 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!
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Whats In Your Profile?
Personal information
Photos
Friends lists and links
Groups
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Why Do HR ProfessionalsUse These Sites?

• Check the background of
• job applicants or current employees
• Identify possible candidates
• to approach about jobs

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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, thats hard to argue if youve already seen
  a persons Facebook or MySpace profile!

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The Primary HR ChallengesWith These Sites

• You cant 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.

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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)

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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 theyre posting a public
  profile!), some applicants or employees may claim
  that youre 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."

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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?

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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).

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Turn the Other CheekPositive Uses of Social
Networking Sites for HR Purposes

• Create a profile or a group on these sites for
  your company.

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Turn the Other CheekPositive 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.

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Turn the Other CheekPositive 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.

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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_at_vtzlaw.com