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March 4, 2011

Do You Check Facebook When Hiring?

Do you check Facebook or other social networking sites for information about job applicants? If so, you're not alone: A survey by Jobvite Inc. shows that more than 80% of companies do. But there are legal risks to using social networking sites as a screening tool. 

As a recent column in Fortune points out, using Facebook and other social networking sites in hiring can lead to discrimination claims. When you view someone's page and posts, you may well see information that you are not allowed to consider in hiring, such as race, religious or political beliefs, and so on. (The column uses the great example of discovering that an applicant belongs to a number of groups for expectant mothers.) If you decide not to hire that person, you may be accused of basing your decision on this information that you would otherwise not be privy to or allowed to use in the hiring process.

The article also discusses the possibility of disparate impact discrimination claims, based on the fact that Latinos and African Americans are disproportionately represented on LinkedIn, the job networking site most commonly consulted by hiring managers. 

Employees and job seekers who use social networks are routinely told to mind those privacy settings. In other words, if you want to keep your online persona personal, use privacy controls to make sure that your information can be seen only by those you have approved. But even this may not be enough to ward off prying potential employer eyes: In an incident publicized a few weeks ago by the ACLU of Maryland, Robert Collins was asked, during a recertification interview for his job at the Maryland Department of Corrections, to provide his Facebook user name and password. Then Collins got to sit and wait while his interviewer read his page and all of the posts by his friends and family. 

Regular readers of this blog know of my ongoing fascination with the breakdown of public and private lives enacted by social networking sites -- and particularly, the large numbers of people to whom the public nature of their posts becomes clear only after it's too late. (Examples from the recent news are people whose posts become evidence in criminal proceedings, including a woman who had a Facebook fight with a friend over a $20 loan for baby formula and diapers, which escalated to online threats and homicide, and a suspected bank robber who jumped to the top of the most wanted list when he found some time while on the lam to log on to MySpace and post, "on tha run for robbin a bank.")

But if someone takes the time and trouble to try to limit their social networking to their actual social network -- their family and friends -- there could be a better privacy argument to be made. Depending on the site's privacy controls and the care the user takes to limit access to personal information, there may well be a stronger expectation of privacy in what's posted on these pages. We'll have to see where courts come down on this issue. 
January 24, 2011

Supreme Court Upholds Contractor Background Checks

On January 19, the Supreme Court rejected a challenge to the federal government's standard background check (called the National Agency Check with Inquiries, or NACI). The majority opinion assumed -- without deciding -- that there is a right to informational privacy, but found that this right wasn't violated by the background checks. (You can read the case here.) 

In the case, a group of employees at the Jet Propulsion Laboratory, a research lab jointly run by Cal Tech and NASA, claimed that two aspects of the NACI violated their rights to privacy: a question about rehabilitation and treatment for illegal drug use, and a requirement that they authorize the government to ask open-ended questions of former landlords, employers, and other references, in which the references are asked broadly about the applicants' financial integrity, "mental and emotional stability," and "general behavior and conduct," among other things. 

The employees who challenged the NACI were government contractors; their official employer was Cal Tech. They were already working at the JPL when they were asked to submit to the screening. (Although federal government employees were already subject to the NACI screening procedures when applying for jobs, contractors were not, until the 9/11 Commission recommended that they also be screened.)

The Supreme Court's opinion began by assuming -- without deciding -- that there is a Constitutional right to informational privacy. This assumption has been seen as a victory by employee advocates, some of whom believed the Court might use this case as an opportunity to decide otherwise. As Justice Scalia wishes it had: His concurring opinion indicates that he sees the Court's failure to decide this issue as a dereliction of duty. He believes the Court should have simply decided that there is no right to informational privacy; his opinion begins with the observation, "Like many other desirable things not included in the Constitution, 'informational privacy' seems like a good idea . . . " (He also believes that the majority's opinion, which weighs the government's need and use for the information against the employees' assumed privacy rights, is "a generous gift to the plaintiff's bar.")

The majority's opinion discusses a number of factors that, in its view, weigh in the government's favor, such as the existence of protections against unnecessary disclosure of the information once it is gathered; the government's role in this case as a manager of its employees (rather than a sovereign of its citizens); the important -- and taxpayer funded -- work done by the employees who brought the case; the common practice in private industry of asking open-ended reference questions such as those on the NACI; and, in the case of the question about drug rehab and treatment, the government's stated intention of using that information for good rather than evil, by considering an employee's efforts to turn things around as a favorable quality. 

These considerations, however compelling, seem to skirt an important issue, which the Court didn't spend much time on: Why does the government need this information in the first place? If there is a privacy right, then the government must have a strong interest in the information it seeks, and the way it goes about getting that information may not be unnecessarily intrusive. It isn't enough to say that everyone else gathers this type of information too, and we'll keep it confidential once we get it. To me, it looks like the Court's assumption of a privacy right was fairly half-hearted. The opinion doesn't read as if the Court thought this information was protected by a privacy right but the government's need for it outweighed the employees' interests. Instead, it seems the Court didn't much believe in the right it assumed, and accorded it relatively little weight in the balance. 

Because this case involves public employment and a (possibly) Constitutional right, it does not apply directly to the private sector. And, despite the Court's claims to the contrary, many private employers don't go this deep in their background checks, at least not for employees who won't hold the highest ranks on the company ladder. The main takeaway from this case may be simply that privacy continues to be a divisive, tentatively handled issue on the Supreme Court -- with this timely reminder arriving only a few days before the anniversary of the Court's ultimate privacy case, Roe v. Wade. 
July 22, 2010

Checking Credit Reports? Check Your State Law First

If you review applicant or employee credit reports, you're undoubtedly already familiar with the Fair Credit Reporting Act (FCRA). Among other things, this federal law requires employers to get the consent of the employee or applicant before pulling credit and other consumer reports, to give notice if the information in the report might lead you to take adverse action (such as denying the applicant a job or denying the employee a promotion), and to give notice -- again -- if you do ultimately take the adverse action.

As long as you follow the rules above, the FCRA allows you to use credit reports for employment purposes, including to decide whether to hire, promote, or even fire. That's the federal law, however; some states see things differently. The economic downturn of the last few years -- and the resulting damage to credit reports and scores -- have led many politicians to reconsider whether it's really appropriate for employers to use credit reports in making job decisions. At least three states (Hawaii, Oregon, and Washington) have passed laws prohibiting employers from considering credit reports in most circumstances. According to the National Conference of State Legislatures, about 20 states are currently considering similar legislation. (See their detailed chart here.)  

March 16, 2010

Supreme Court Takes Case on Background Checks

The Supreme Court has agreed to hear a case challenging the federal government's background check process. (The case is called National Aeronautics and Space Administration v. Nelson; you can find links to the petition and other documents here, on SCOTUSblog.)

The underlying challenge was raised by a group of scientists, engineers, and administrative support employees who worked at the Jet Propulsion Laboratory (JPL), a research lab run by NASA and the California Institute of Technology. The employees were officially employed by CalTech. Following a policy change in 2007, all JPL employees whom the government categorized as "low risk" (they didn't have access to classified material) had to submit to the background check procedures routinely applied to federal civil service employees in order to maintain their access to the JPL. The employees filed a lawsuit and sought a preliminary injunction to stop the new policy from going into effect until the court had a chance to decide whether it was constitutional. 

The background check -- called the Nationwide Agency Check with Inquiries (NACI) -- requires employees to provide information on their residential, education, employment, and military histories; give references; and disclose any use of illegal drugs in the past year, along with any treatment or counseling received. Employees must also sign a release form allowing the government to collect information from landlords, employers, and references on a wide variety of topics, including "financial integrity," "mental or emotional stability," and "general behavior or conduct."

The Ninth Circuit Court of Appeals ruled in favor of the government on several issues. However, the Court found that the employees were entitled to a preliminary injunction because they had raised serious questions as to whether their constitutional right to informational privacy was violated by the question asking about drug treatment or counseling and by the release form (and subsequent inquiries it authorized). NASA petitioned the Supreme Court to hear the case, and the Court agreed to do so earlier this month.

This case challenges background checks applicable to government employees and contractors. The U.S. Constitution protects only against action by the government (in this case, NASA's decision that JPL employees had to pass a background check), not actions by private companies and employers. So, while the outcome of the case could be hugely significant to federal sector employees, who have been subject to these same background check requirements for decades, it won't be directly applicable to those who work in the private sector. However, state courts often follow the Supreme Court's lead and guidelines in deciding cases alleging violations of privacy, even though the right to privacy applicable in those cases generally comes from a state constitution, statute, or case law, not the U.S. Constitution.

Private sector employees could be more directly affected by some of the background check developments reported on this week by SHRM, here (you may need to be a SHRM member to view the article). SHRM reports that the EEOC is considering issuing new enforcement guidance explaining when employers may consider an applicant's credit history and arrest and conviction record in the hiring process. The EEOC has long stated that using credit reports and criminal records to disqualify applicants could have a disparate impact based on race; if so, the employer would have to show that the practice is job-related and consistent with business necessity. SHRM offers some tips that will help employers avoid legal trouble when performing background checks, including that employers should be selective in deciding which positions require a background check and should allow applicants to explain negative information that turns up.   

August 24, 2009

Please Do Not Microchip the Employees (But Biometric Scanning May Be OK)

Did you know that at least four states have passed laws that prohibit mandatory or coerced microchipping, including installing a microchip or radio frequency identification (RFID) tag as a condition of employment? A number of states have legislation addressing the improper use of RFID tags or the information from them (for example, to surreptitiously gather private information). But California, North Dakota, Ohlahoma, and Wisconsin have gone further to ban employers from implanting microchips in their employees as a condition of employment. You can find a list of state RFID laws, with links, here, at the website of the National Conference of State Legislatures.)

California's statute (Cal. Civil Code section 52.7), for example, prohibits requiring, coercing, or compelling anyone to undergo "the subcutaneous implanting of an identification device," including conditioning any private or public benefit on consent to implantation, "including employment, promotion, or other employment benefit, or by any means that causes a reasonable person of ordinary susceptibilities to acquiesce to implantation when he or she otherwise would not." The law imposes penalties of $10,000 per violation, with an additional $1,000 penalty for each day the violation continues; it also creates a right of action, with punitive damages, attorney fees, and litigation costs (including the cost of hiring expert witnesses).

And speaking of high-tech information gathering, one of the fixes currently under consideration for the E-Verify system, the government's online system for authenticating an employee's authorization to work in the United States, involves biometric data. Senator Schumer, Chairman of the Senate Judiciary Committee's Subcommittee on Immigration, Refugees, and Border Security, recently said that E-Verify should include a biometric component -- based on fingerprints, retinal scans, or DNA, for example -- to make sure that the employee is who he or she claims to be. Employment lawyers have raised a number of concerns about the proposal, from privacy violations to concerns about the cost, according to a recent article in the National Law Journal.

Certainly, any employer that requires employees to provide biometric information will have to guard the privacy of that information very carefully. If biometric information is leaked or stolen, the term "identity theft" could take on a whole new meaning -- to include not only identification numbers or bank account information but also the ridges on our fingertips and the unique structure of our faces (or our genes). You can apply for a new Social Security number, but not a new eyeball. And this issue is already on the legislative radar: For example, Illinois recently enacted a law requiring companies that gather biometric data to do so only with written consent, to use reasonable care to store and protect that information (and to refrain from selling it), and to establish a timetable for retaining and destroying the information 

May 7, 2009

Immigration Enforcement Shifts to Employers

Last week, the Department of Homeland Security announced that it had issued new guidance to Immigration and Customs Enforcement ("ICE"). The new marching orders: Focus on employers, not employees. The press release on the new rules says that, effective immediately, worksite enforcement resources will be focused on the criminal prosecution of employers who knowingly hire unauthorized workers, "to target the root cause of illegal immigration."

The press release points out that previous efforts resulted in many more arrests of workers than employers. Of the more than 6,000 arrests ICE made in 2008 as part of its worksite enforcement program, 135 were employers, managers, and human resources personnel. The rest were the workers themselves.

Just as ICE is refocusing its efforts on employers, the Supreme Court took away one of its tools for prosecuting workers. The workers arrested by ICE often face criminal charges relating to their use of false identity information. Prosecutors could also tack on the charge of aggravated identity theft, which carries a two-year sentence extension, if the worker knowingly used someone's else's identification. According to the New York Times, prosecutors used the threat of that additional punishment to convince workers to plead guilty to lesser charges, such as document fraud.

Earlier this week, the Supreme Court held that the crime of aggravated identity theft requires the alleged thief to know that the identification information he or she is using actually belongs to someone else. In other words, a worker can no longer be charged with aggravated identity theft simply for making up a Social Security number; the worker must know that the number belongs to another person.

See The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo), for detailed information about what's required of employers in verifying that employees are legally authorized to work in the United States.

April 7, 2009

It's Spring Break: Don't Get Photographed Doing Anything Stupid (or Tweet About It Later)

It's spring break, when thousands of college students follow the time-honored tradition of heading to warmer climates to party. But these days, when the job market for soon-to-be college graduates looks pretty bleak, spring break revelers might want to remember this: Prospective employers have Internet access. If a search for your name turns up, say, a photo of you at a party with the caption "Drunken Pirate," your job prospects might go from grim to nonexistent.

Recent news reports show that applicants and employees alike don't seem to realize that their Internet posts are public -- as in, employers can find them, read them, and perhaps figure out who posted them. That's what "theconnor" learned recently when, after being offered a job at Cisco, he tweeted the news, along with this commentary: "Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work." Soon, someone from Cisco responded, "Who is the hiring manager. I'm sure they would love to know that you will hate the work. We here at Cisco are versed in the web." Then, the website "Cisco Fatty" was created to memorialize the whole incident. (Check out the whole story here.

Then there's the teacher who got fired for his MySpace page, which he said he created to communicate with students outside of school and build a better relationship with them. Apparently, the road to a better relationship was paved with nude photos, cursing, and inappropriate conversations. The teacher lost his wrongful termination lawsuit.

To learn more about why your company needs a policy on employee use of blogs and social networking sites, see Nolo's article Employee Posts on Facebook, MySpace, Twitter, and Blogs.

June 4, 2008

High Gas Prices Should Drive Employees to Telecommuting

gas.jpgWith gas prices hovering around $4 per gallon, a survey by placement firm Challenger, Gray & Christmas reveals that 57% of polled employers are offering alternatives to help employees cope, according to CNN. Strategies include a compressed work week -- four 10-hour days (23%) -- employee carpools (20%), subsidizing the cost of public transportation (18%), and allowing employees to telecommute at least one day a week (14%). Personally, I'm surprised telecommuting is so far down the list. All the other options are good ones, but telecommuting has some distinct advantages for employers as well as employees. (Full disclosure: I'm writing this from home, as a telecommuting employee.) Here are just a few of the benefits:
  • Recruiting and retaining the best employees. According to the survey, 34% of employers have had a qualified candidate turn down a job because of a long commute, while 40% of jobs could be done telecommuting. Allowing employees to telecommute is an attractive job benefit that will help you attract the best candidates, even if far away. Another study shows telecommuting employees are more satisfied with their jobs, and less likely to leave.
  • Decreased costs. Telecommuting may decrease your costs -- for example, if it allows employees to share work space and office equipment.
  • Increased efficiency. Employees working at home are free of the distractions of a ringing phone, interruptions by co-workers, and the like. Particularly if working on focused projects, this allows employees to work more efficiently.
  • Positive environmental impact. One 2005 study found Americans drive an average of 16 miles each way to work. In addition to reducing commuting times and costs, allowing telecommuting has a positive environmental impact as fewer workers drive to the office.

To learn how to create a work-at-home arrangement that will suit both employee and boss, see The Work From Home Handbook, by Diana Fitzpatrick and Stephen Fishman (Nolo).

Alayna Schroeder
October 11, 2007

The "No-Match" Letter Is Not in the Mail: Federal Judge Suspends New Regulations

ssalogo.gifAs we previously posted here, there's a lawsuit underway in San Francisco, challenging the Department of Homeland Security's new regulations telling employers how to handle "no-match" letters. A coalition of labor, immigrants' rights, and business groups filed the lawsuit, asking the court to stop the new regulations from going into effect. And that's exactly what the court did on October 10, 2007, for at least the next few months.

The court issued a preliminary injunction: a court order that prevents the rules from going into effect while the lawsuit is pending. The court's decision found that serious questions had been raised as to whether the government followed required procedures, such as analyzing the effect the new regulations would have on small businesses. Because of these questions, and because allowing the regulations to go into effect would cause significant harm to both employers and employees, the judge put them on hold.

What happens next? The lawsuit continues, and the Social Security Administration finds a place to store the 141,000 no-match letters it planned to mail out. And here's an interesting twist: Judge Charles Breyer issued this decision. If that name sounds familiar, it's because his brother -- Justice Stephen Breyer -- sits on the U.S. Supreme Court, which could well decide this issue once and for all.

Lisa Guerin

UPDATE: In December 2007, there were a couple of new developments in this case. First, the Department of Homeland Security filed an appeal, asking the Ninth Circuit Court of Appeals to lift the temporary injunction and allow the new rules to go into effect. And second, Judge Breyer (the district court judge) agreed to put off his decision on whether to issue a permanent injunction until March of 2008, to give the government a chance to address the concerns that led Judge Breyer to issue the preliminary injunction.

September 24, 2007

Hire My Avatar! I Mean, Me - Recruiting Employees in the Virtual World

To what length will your company go to recruit top talent? Some companies, it seems, are willing to enter a whole new world--a virtual one, that is. A recent article reveals that some organizations are using Second Life, an online "3-D virtual world," to recruit and interview applicants. Interviewers and interviewees choose avatars ("your persona in the virtual world") and arrange meetings that require them to master virtual world skills like climbing stairs, shaking hands, and even getting dressed.

Maybe I'm old-fashioned, but I'm not ready for a virtual world to take the place of the real one. If your company is thinking about jumping on the Second Life bandwagon, consider a few important factors.

First, not everyone will want or be able to use Second Life--for example, applicants with visual or other physical disabilities, or even older applicants who may be less likely to join Second Life (the average age of a Second Life "resident" is 30). For legal and practical purposes, you'll want to make sure applicants have access to other recruiting and interviewing methods.

Second, consider how long it takes to learn to use Second Life. A successful applicant said it took him about a day and a half to learn the basics (like not walking into virtual walls)--and of course, you and every other interviewer will have to learn those skills too. Unless it's something you expect to do often, it may not be practical.

Third, are the skills the candidate needs to navigate in Second Life relevant to the position? If you're hiring for a high-tech position, perhaps. Otherwise, you may not find the best candidates this way--it's hard to see a lot of accounting professionals or equipment operators using Second Life, for example. And it's never wise to make employment decisions based on skills unrelated to the job--like keeping your avatar virtually seated.

Finally, don't undervalue a face-to-face meeting. Yes, communicating through avatars may put a candidate at ease and limits (but doesn't eliminate) your ability to distinguish between applicants based on legally-protected classes like race or age. But often, you'll want to see how a candidate reacts to stressful situations--like a job interview. For many positions, you'll want to make sure the applicant presents well and has good people skills, both almost impossible to judge online. Also, the virtual interviewee doesn't get the benefit of seeing the work environment or getting a feel for the company culture. The best practice, if you interview in the virtual world, is to follow up with an in-person meeting--between actual, carbon-based life forms--to make sure the candidate meets your needs.

If you want to learn more about the basics of hiring an employee, Attorney Fred S. Steingold's The Employer's Legal Handbook is a good place to start.

Alayna Schroeder