I would like to thank everyone on today's BLR teleconference on the pitfalls on using social networking sites to conduct background checks on employees. I hope everyone enjoyed the seminar.
As I promised, here are the five general caveats employers should follow when using social networking sites to conduct background checks on employees:
1. The employer and/or its agents conduct the background check themselves; 2. The site is readily accessible to the public; 3. The employer does not need to create a false alias to access the site; 4. The employer does not have to provide any false information to gain access to the site; and 5. The employer does not use the information learned from the site in a discriminatory manner or otherwise prohibited by law.
If any of the listeners to today's teleconference have any follow-up questions or comments, please feel free to email me.
The United States Senate voted 95-0 to pass the Genetic Information Nondiscrimination Act yesterday. That bill, which President Bush is expected to sign, would bar insurers from asking or using genetic information to make a decision about coverage or to set premiums. Under the bill, insurers would be prohibited from raising premiums for a group because one or more members have genes that would predispose them to an illness. That provision is important for small employers that offer health coverage because a sudden increase in rates can lead to the cancelation of coverage altogether.
Equally significant for employers is the fact that the bill prohibits employers, unions and employment agencies from requesting or using genetic information for hiring, promotions, assignments or firing. According to Sharon Terry, president of the Genetic Alliance, “genetics will be protected just like race, religion and gender.” Senator Snow (R-Maine) agreed stating that “we are on the threshold of a new era, because for the first time we act to prevent discrimination before it takes hold. We are taking a stand that, as we look to the future, genetic discrimination will not be allowed to flourish, to take root.” For more information on this bill click here.
The Senate recently failed to break a Republican-led filibuster currently blocking the Fair Pay Restoration Act. The Fair Pay Act would make it easier for people to sue over pay discrimination and is in response to the 2007 Supreme Court ruling that limited such cases. In that case, the Supreme Court ruled that unequal pay claims must be filed within 180 days of the first discriminatory paycheck instead of when the employee discovers the discrepancy. The deadline is specified in Equal Opportunity Commission guidelines and it "protects employers from the burden of defending claims arising from employment decisions long past" Justice Samuel Alito wrote for the majority in the 5-4 decision.
The bill currently under consideration would have "reset the clock" with every paycheck. In support of this provision, advocates argue that each paycheck is a discriminatory act while opponents contend that the provision was unworkable. For example, the bill -- as currently drafted -- would arguably allow retirees drawing pensions to sue their old companies over allegations of discrimination that occurred several years ago.
Opponents further assert that allowing employees to assert claims going that far back will lead to evidentiary problems because evidence supporting decade-old claims will likely be difficult to obtain.
Although the bill is stalled now, supporters promise to continue their efforts even though President Bush is likely to veto the bill should it pass both the House and Senate. For more information on why the supporters of the Fair Pay Act believe it is necessary, click here. Click here for additional reasons opponents believe the bill is unnecessary.
Employers are obligated only to provide copies of any documents signed by the employee or applicant relating to their job. Labor Code section 432.
Employees are allowed to inspect other categories of documents. For example, Labor Code Section 1198.5 requires employers allow employees and former employees access to their personnel files and records that relate to the employee’s performance or to any grievance concerning the employee. Inspections must be allowed at reasonable times and intervals. To facilitate the inspection, employers must do one of the following: (1) keep a copy of each employee’s personnel records at the place where the employee reports to work, (2) make the personnel records available at the place where the employee reports to work within a reasonable amount of time following the employee’s request, or (3) permit the employee to inspect the records at the location where they are stored with no loss of compensation to the employee.
Employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. Labor Code Section 226(b). Starting on January 1, 2003, an employer who receives a written or oral request from a current or former employee to inspect or copy his or her payroll records shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. Failure to comply with the request entitles the employee to a $750 civil fine. Labor Code Section 226, subdivisions (c) and (f)
There are limits to the documents that an applicant or employee can inspect from his or her file. The employee does not have the right to inspect records relating to the investigation of a possible criminal offense, letters of reference, or ratings, reports, or records that (a) were obtained prior to the employee’s employment, (b) were prepared by identifiable examination committee members, or (c) were obtained in connection with a promotional exam.
I will be speaking again next week on the pitfalls employers encounter when using the Internet, MySpace.com, Facebook.com, and similar social networking sites to check out the backgrounds of job applicants and employees. If you are interested, more information about the seminar can be found here.
While I thought this topic was interesting, I had no idea that so many people would also find it interesting. I was recently quoted in Financial Week and have had many other inquires about the topic.
The Assembly Labor and Employment Committee passed the Healthy Families, Healthy Workplaces Act today by a vote of 6-2.
The bill, introduced by Assemblywoman Fiona Ma (D-San Francisco) in February, AB 2716, would allow workers to earn paid sick days that can be used to recover from illness, care for a sick family member, or recover from domestic violence or sexual assault.
Employers are becoming more and more aware of the information obtainable via the internet about their current employees as well as applicants. Many are looking up prospective and current employees' Facebook and MySpace pages to glean more information about the individual. As the the Fox News video below shows, current employees need to be careful what they tell their bosses to get the day off of work, versus the information posted on their Facebook page.
While the information posted on the Internet on social networking sites is usually public for everyone to see, employers need to be aware of potential claims against them. The law is behind in the times and there are many uncertainties in this area. Listed below are some potential pitfalls that employers need to be aware of when using the Internet to conduct background checks. Federal and State Discrimination Claims
Because people are becoming so comfortable in sharing private information on social networking sites, employers may learn too much information about an applicant that would not and could not have been discovered through an interview. Discovery of this personal information is not unlawful – it is likely that the employer would find out many of these traits at the first in-person interview with the applicant anyway. However, employers cannot base its employment decisions upon a protected category, such as race or gender. By learning about this type of information of an applicant via their on-line profile, the employer may have to explain that the information did not enter into the hiring decision.
Invasion of Privacy Claims
Though one might argue that members of social networking sites have no expectation of privacy (since they’re posting information to the world) some applicants or employees might argue that the employer overstepped its legal bounds by using profile data in employment decisions. Arguably, the terms of service agreement may create expectation of privacy for users of site.
State Law Privacy Claims Employees could potentially argue that using Facebook, MySpace or similar site to conduct background checks violate state statutory law. For example, California and New York have statutes that prohibit employers from interfering with employee’s off-duty private lives. Employees may attempt to argue a public policy violation has occurred in violating a state statute that protects off-duty conduct from employer’s control.
State common law could also create liability. Generally, there are four common law torts for invasion of privacy:
intrusion upon seclusion,
public disclosure of private facts causing injury to one's reputation,
publicly placing an individual in a false light, and
appropriation of another's name or likeness for one's own use or benefit.
As explained by one court, the tort of unreasonable intrusion upon the seclusion of another, "depends upon some type of highly offensive prying into the physical boundaries or affairs of another person. The basis of the tort is not publication or publicity. Rather, the core of this tort is the offensive prying into the private domain of another." (citing Restatement (Second) of Torts § 652B, comments a, b, at 378-79 (1977)). Generally, the invasion of privacy must consist of (1) highly offensive intrusion (deceitful means to obtain information); and (2) prying into private information (information placed on the web is most likely not private).
Fair Credit Reporting Act
An employer’s use of social networking sites may implicate the FCRA, which places additional disclosures and authorization requirements on employers. In enacting the FCRA, Congress stated its underlying purpose was to ensure that decisions affecting extension of credit, insurance, and employment, among other things, were based on fair, accurate, and relevant information about consumers. The FCRA is intended to provide employee with notice of the background check, authorization to conduct the check in certain circumstances, and disclosure to the employee if the information is used in the employment context.
FCRA Definitions:
A “consumer report” is defined at as information (oral, written, or other communication) provided by a “consumer reporting agency” about credit matters as well as about a person’s “character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for…employment purposes.”
Another kind of “consumer report,” called an “investigative consumer report” contains information on a consumer’s character, general reputation, personal characteristics, or mode of living that is obtained through personal interviews with friends, neighbors, and associates of the consumer.
A “consumer reporting agency,” is defined as “any person who regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.”
Employers who conduct the background checks internally do not qualify as a “consumer reporting agency” and therefore the FCRA does not apply. Employers still need to be careful, however, because state law may apply. For example, California Investigative Consumer Reporting Agencies Act is more restrictive than the FCRA.
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.” Violation of the terms of service would not automatically create a cause of action in and of itself. However, as discussed above, it may be a way for a plaintiff to argue that there is an expectation of privacy in using the site and everyone who signs up to use the site is agreeing to abide by those terms.
The Electronic Communications Privacy Act of 1986
The ECPA was intended to expand wiretapping protections to electronic communications.
Title I of the ECPA provides that “any person who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished ... or shall be subject to suit ...."
Title II, known as the Stored Communications Act (SCA), focuses on communications in storage (e-mails, blogs, electronic bulletin or similar message boards) and most likely social networking sites. The Store Communications Act provides that "whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished ...."
However, the SCA exempts from liability, ``conduct authorized ... by a user of that service with respect to a communication of or intended for that user.´´ A virtual community that has some type of privacy protection can create liability for an employer who provides false information or assumes an identity to gain access to the site.
Therefore, employers need to stay away from pretexting in order to gain access to an applicant's or employee's on-line profile. Also, websites and social networking sites open to the public are not covered by the SCA. Courts have indicated that a terms of service agreement, and nothing more, would not be enough to create a private webpage. There needs to be more protections taken by the publisher of the on-line content in order for the individual to prevail in asserting the site was “private” under the ECPA.
Conclusion Generally, under Federal law, employers may utilize social networking sites to conduct background checks on employees if:
The employer and/or its agents conduct the background check themselves;
The site is readily accessible to the public;
The employer does not need to create a false alias to access the site;
The employer does not have to provide any false information to gain access to the site; and
The employer does not use the information learned from the site in a discriminatory manner or otherwise prohibited by law.
To end the week, we wanted to give ourselves a pat-on-the-back due to our blog's first place ranking in popularity among employment law blogs (and ranked 32nd of out of all legal blogs) this week on Justia.com.
If you have not already checked it out, Justia.com is a more technological version of Findlaw, and has some great resources.
I am preparing for a press interview about how employers should approach dress code policies and it seems that it always is a surprise to people to learn that that the California Government Code specifically addresses employees' right to wear pants to work. Section 12947.5 states:
(a) It shall be an unlawful employment practice for an employer to refuse to permit an employee to wear pants on account of the sex of the employee. (b) Nothing in this section shall prohibit an employer from requiring employees in a particular occupation to wear a uniform.
Also, employers should note, dress standards or requirements for personal appearance need to be flexible enough to take into account religious practices. While it is lawful for an employer to implement rules about employee physical appearance, grooming, or dress standards, the standards cannot discriminate based on a protected category, such as race or sex. Also, click here to read a previous post about policies on tattoos, tongue rings, and body piercings in the workplace.
The award represents an estimated amount of cash from tip pools that shift supervisors received between October 2000 and February 2008. The plaintiffs maintained that the shift supervisors were considered managers under California law, and therefore improperly participated in sharing in the tips placed in the tip jar. California law prohibits managers from participating in tip pooling arrangements.
Plaintiff’s used experts to provide an estimated the hourly tip rate. Based on a sampling of 250 stores in California, the experts determined that amount due to the class members was $1.87, plus or minus 16 cents per hour worked by the shift supervisors. While this amount does not seem to be much, it adds up when dealing with 120,000 current and former baristas who worked for Starbucks during the eight years at issue.
While there was a rash of tip pooling class action filed in California about two years ago, it appeared that this type of case was losing the interest of the plaintiff’s attorneys. However, once this judgment becomes commonly known, business owners can be sure that tip pooling cases will continue, if not increase in the coming year or two. Now is a good time to ensure that that a company’s tip pooling policy complies with California law. Our prior posts on this case can be read here.
