Delaware Employment Law Blog

LexisNexis has selected Delaware Employment Law Blog as a nominee for its Top 25 Labor and Employment Law Blogs. We're very honored to have been selected and are in very good company, along with 58 or so other excellent employment law or Human Resources-related blogs that also were nominated. According to LexisNexis, readers are encouraged to leave a comment in support of their favorit blog--each comment is counted as one "vote" and can be submitted through September 12, when the top 25 are announced.

Honestly, the biggest reward that we could hope for is your continued readership. Ok, well, the kind words some of you send to us once in a while don't hurt, either--I mean, who doesn't appreciate a compliment now and then? So we won't ask you to vote for us but certainly wouldn't object if you were inclined to do so anyway. To vote, you must be registered, so there is a prerequisite. If that doesn't stop you from wanting to support the Delaware Employment Law Blog, we thank you for your dedication. And, if not, thanks anyway! We're glad to have you stop by the blog anytime, voting or no voting!

The cat’s-paw theory of liability in the context of an employment-discrimination claim was upheld by the Third Circuit last week in McKenna v. City of Philadelphia last week. The case has far-reaching consequences, though—about $9.1 million farther.

At trial, the jury awarded the three plaintiffs a total of $10 million dollars. The trial-court judge reduced the verdict to $300,000 each, for a total of $900,000, in accordance with the compensatory-damage cap prescribed by Title VII. The plaintiffs argued that the damages should not have been reduced because the applicable state law, the Pennsylvania Human Rights Act, does not provide for caps on damage awards. The judge disagreed and found that the time to amend the complaint was before the jury returned the damages award. The Third Circuit affirmed the decision and the plaintiffs’ significantly reduced damages remain in place.

Many employee-plaintiffs allege a claim under federal law, as well as under the applicable state law, when filing a complaint of discrimination against their current or former employer. But, if they don’t, there can be significant consequences—more than $9 million worth in this case.

In McKenna v. City of Philadelphia, No. 09-3567 (3d Cir. Aug.17, 2011), the Third Circuit affirmed a jury award in favor of a fired Caucasian Philadelphia police officer, who claimed he had been retaliated against for complaining to his supervisor about racially discriminatory treatment of minority officers. The City claimed that even if the supervisor’s conduct was retaliatory, the City was insulated from liability because the termination decision was made by an independent Police Board of Inquiry (“PBI”) after a hearing.

In affirming the verdict, the court cited the recent “cat’s-paw” decision, Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), in which the U.S. Supreme Court held that, if an action by a biased supervisor is the proximate cause of a worker's termination, an employer can be held liable even if the supervisor did not make the ultimate decision. Since the supervisor in McKenna had testified at the PBI hearing, the Third Circuit concluded that the jury could reasonably have decided that the supervisor’s retaliatory animus bore a direct and substantial relation to the termination, and the PBI’s decision was not independent and was foreseeable.

The case has special significance for Delaware employers. Delaware recognizes the implied covenant of good faith and fair dealing, including a subcategory that is markedly similar to the cat’s paw theory. In Delaware, if an employee’s employment record is falsified or manipulated by a supervisor in order to bring about the employee’s termination, the employer can be held liable even if the employer is unaware of the supervisor’s animus.

Under the cat’s-paw theory, the supervisor’s animus is actionable only if related to one of the discrimination laws, as in McKenna, where the supervisor retaliated against complaints of race discrimination, in violation of Title VII. In Delaware, the basis of the supervisor’s animus is not so circumscribed. The action of the Delaware supervisor could arise from personal animosity unrelated to discrimination, but if the result is to create a false record in order to procure a termination, and the employer relies on the supervisor’s statements, the employer may be held liable under the implied covenant.

As more cases are decided under the cat’s paw theory, it seems likely that terminated Delaware employees will draw an analogy to the cat’s paw theory and it will become more difficult for employers to avoid liability under the implied covenant theory.

Can a prospective employer be held liable under the retaliation provision of the FLSA? Not according to the Fourth Circuit and its decision in Dellinger v. Science Applications International Corp..

The case arose when Ms. Dellinger applied for work with Science Applications. Science Applications made Ms. Dellinger a job offer, contingent upon her providing certain information—including a list of pending civil litigation in which she was a party. Shortly after revealing that she was involved in FLSA litigation against her former employer, Science Applications withdrew the job offer to Ms. Dellinger. Ms. Dellinger then filed suit against Science Applications, alleging that it violated the retaliation provisions of the FLSA. Science Applications moved to dismiss the suit on the grounds that the FLSA protects employees only, not prospective employees. The District Court dismissed the suit, and Ms. Dellinger appealed.

The Fourth Circuit affirmed the District Court decision. In its opinion, the Court emphasized that the FLSA’s anti-retaliation provision relates to circumstances in which an employee alleges a violation by the employer. Given that context, the Court found that the retaliation provision cannot be expanded to cover prospective employees who have made no allegation against the prospective employer.

The Court also distinguished the FLSA from other statutes, including the National Labor Relations Act and the Occupational Safety and Health Act, noting the definition of “employee” under those statutes and enabling regulations is broader than the definition under the FLSA.

The legal maxim, “bad cases make bad law” was applied in full in a recent decision by the Ninth Circuit. In Pitts v. Terrible Herbst, Inc., the plaintiff-employee, Gareth Pitts, filed a complaint in Nevada state court, alleging that his employer, Terrible Herbst, Inc., had failed to pay him and other similarly situated employees overtime and minimum wages in violation of the FLSA, state labor laws, and state breach-of-contract laws. The employee alleged a mere $88 in unpaid wages.

Procedural Background

The employer removed the case to federal court and the district court entered a scheduling order. The employee served a discovery request in which he sought a list of the names and addresses of all of Terrible’s employees “who work or have worked in [its] retail locations . . . on an hourly . . . basis.” Terrible refused to produce the information. The case law on this question—whether, in a collective FLSA action, an employer must produce the names and contact information of all employees in the putative class before a class has been certified—differs between jurisdictions. Some courts require that this information be produced, even when no class has been certified and others do not require it until there has been at least a conditionally certified class.

The employee filed a motion to compel Terrible to produce the requested information. The magistrate judge heard arguments on the motion but hadn’t yet ruled on it when the discovery period was scheduled to end. The employee moved to extend the discovery schedule, in light of the pending motion to compel. The motion to extend was granted and the motion to compel remained undecided.

In the meantime, Terrible made an offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure in the amount of $900. Keep in mind—the employee had alleged he was owed $88 in back wages. The offer of judgment was for more than ten times the amount of damages the employee claimed he was owed. The offer also provided for costs and reasonable attorney’s fees—both are necessary if the offer is to constitute an offer of full relief under the Federal Rules in an FLSA case. The employee, for reasons unexplained, did not accept the offer.

The District Court’s Decision

The employer filed a motion to dismiss, arguing that, because it had offered to fully compensate the employee for all damages that he sought, including reasonable fees and costs, the court lacked subject-matter jurisdiction to hear the case. In other words, there was no longer a live case or controversy that required a decision by the court—the employee’s refusal of the offer of judgment had rendered his claim moot. The district court denied the motion and held that a Rule 68 offer of judgment does not moot a putative class action, so long as the class representatives can still file a timely motion for class certification.

Nevertheless, the court went on to conclude that, despite there being no deadline for the employee to file a motion for class certification, the employee had “pushed beyond the limits of timeliness in waiting for certification” and that the employee’s “failure to move for class certification before the initial deadline for discovery demonstrates untimeliness on his part” and dismissed the entire action with prejudice for lack of subject-matter jurisdiction, entered judgment in the defendant’s favor, ordered the employer to pay $900 to the employee and $3,500 to the employee’s attorneys.

Huh? If you’re confused, you’re in good company. But wait, there’s more.

In the same order, the court dismissed the state-law wage claim on alternative grounds. The court concluded that a Rule 23 class action is inherently incompatible with an FLSA collective action and, when both actions are brought together, only the FLSA action may proceed. This conclusion was reached despite the fact that the employee had previously agreed to waive his FLSA claim, although he had not yet amended his complaint to reflect that waiver.

The 9th Circuit's Decision

On appeal, the Court of Appeals for the Ninth Circuit had a fine time trying to straighten out the district court’s ruling. Unfortunately, the appellate court fared only mildly better than the trial court in ruling on the several issues raised on appeal. For the purposes of this post, though, I’ll limit the discussion to the mootness issue.

Specifically, the court was asked whether a putative class action becomes moot when the named plaintiff receives an offer of settlement that fully satisfies his individual claim before he files a motion for class certification. The court answered in three parts as follows:

(1) If a class has been certified, then the offer does not moot the claim;

(2) If class certification had been denied, then mooting the putative class representative’s claim does not necessarily moot the class action because he still has an interest in obtaining a final decision on certification; and

(3) If certification has not yet been addressed, then mooting the putative class representative’s claims does not necessarily moot the class action because it could be “so transitory a claim that the court may not have enough time to rule before the representative’s interest expires.”

In other words, the employer is, for all intents and purposes, totally out of luck. Despite having tendered an offer of judgment in an amount more than ten times the amount the employee alleged he was owed, it is going to be stuck in litigation of a collective action. There is, in other words, no way to remedy the employee’s harm and resolve the case.

Pitts v. Terrible Herbst, Inc., No. 10-15965 (9th Cir. Aug. 9, 2011).

The NLRB's position on "Facebook Firings" (i.e., when an employee is terminated for comments posted on Facebook), remains a hot-button issue for union and non-union employers alike. The Board's General Counsel recently issued three opinions in favor of employers who had been charged with violating the National Labor Relations Act (NLRA) when they terminated or disciplined an employee for social-media activity.

But that hasn't calmed the many employers who worry about the consequences they could face if the NLRB takes a hard stance against a workplace social-media policy. So what is the worst-case scenario in the event the NLRB takes aim at your policy? A decision by Chairman Liebman and Members Becker and Pearce, issued on August 2, gives real insight into the answer.

In Bay Sys Technologies, LLC, Case 5-CA-36314, the employer initially filed an answer to the Charge, which was brought by former employee, Dontray Tull, but later withdrew it. When an employer withdraws its answer to an Unfair Labor Practice Charge, it is deemed to have defaulted and all of the allegations in the Charge are taken as true. According to the Charge (and, because the employer withdrew its answer, the Board's Decision), the facts are as follows:

On August 6, 2010, Mr. Tull posted comments to other employees' Facebook pages about the employer's failure to issue employees' paychecks on time. The messages were published a week later in a local newspaper. The same day, the company's CEO sent an email to employees, in which he "expressed disappointment" that employees had elected to take their complaints to the media instead of using internal channels to resolve the issue. He also stated that, by going to the media, the employees had breached their non-disclosure agreements and threatened suit if the employees continued to publicly air their complaints. Finally, the CEO implied that employees who had gone to the press would receive less favorable performance reviews.

A week and a half later, the CEO and a Vice President called employees to the CEO's office individually, where the employees were "interrogated" about their "protected concerted activities." Employees also were told that, if they didn't like their job, they could look for work elsewhere. Mr. Tull was terminated the following day.

So, assuming, as the Board was required to do, that all of these facts are true, what is the remedy? In other words, what's the worst-case scenario for the employer if the NLRB determines that the employer violated the NLRA by terminating employees for engaging in protected concerted activity via their Facebook posts? This case holds the answer.

First, the employer was ordered to "cease and desist" from "expressing disappointment to employees" that they took their complaints to the media; telling employees that they violated their nondisclosure agreements for speaking with the media; threatening employees with legal action for engaging in protected activities; threatening employees with less favorable performance reviews; "interrogating" employees about their protected activities; telling employees that they should find a new job if they were dissatisfied; telling employees that they should have used internal channels to air their grievances; and terminating or otherwise discriminating against employees for their protected activities.

Second, the employer was ordered to take the following affirmative steps: (a) reinstate Mr. Tull; (b) pay Mr. Tull any lost earnings; (c) remove any negative references relating to the incident from Mr. Tull's personnel file; (d)provide a variety of employee records to the NLRB for determination of other back pay due under the Order; (e) post a notice of rights; and (f) file a sworn affidavit of compliance.

So there you have it, employers. This is what could happen if you take an aggressive (very aggressive) stance against employees posting online about an internal issue as fundamental as they come (i.e., timely issuance of paychecks), and then elect not to defend the case. These are the remedies that the Board can, and likely will, award.

Delaware’s Workplace Fraud Act , passed in July 2009, currently prohibits employers in the construction services industry from misclassifying employees as independent contractors. An employer who misclassifies its employees—intentionally or unintentionally—may be subject to civil penalties of up to $5,000 per misclassified employee; restitution obligations; stop-work orders; debarment from public contracts; and civil suit by the aggrieve employee(s).

Two bills currently under consideration by the Delaware General Assembly would amend and expand the Workplace Fraud Act. House Bill 221 would significantly expand the scope of the Act to cover all employers in the State. It would also make individual business owners jointly and severally liable with the business entity for any violation of the Act. House Bill 222 would allow the Department of Labor to publish a list of employers who had been found to have violated the Act.

Both Bills are currently in committee, and have not yet been put to a vote. It is unclear whether the bills have sufficient support to be passed by the General Assembly. But one thing is clear—passage of the bills would greatly impact Delaware employers using independent contractors!

These proposed amendments may reflect new enforcement efforts by the U.S. Department of Labor, seeking to put an end to employer practices of misclassification of employees as independent contractors in violation of the Fair Labor Standards Act and federal tax law.

The Parental Bereavement Act is the latest in a series of proposed amendments to the Family and Medical Leave Act (FMLA). The Act, as drafted, would permit an employee to take unpaid bereavement leave for the death of a child. This is just the latest change to the FMLA proposed in the last two years. Other proposals have included:

1. The Family Fairness Act (2009), which would remove the requirement that an employee perform 1,250 hours of work for an employer prior to becoming eligible for FMLA leave;

2. The FMLA Inclusion Act (2011), which would expand FMLA coverage to allow leave to care for same-sex partners, adult children, siblings, grandparents, and other more attenuated family relationships;

3. The Healthy Families Act (2011), which would require employers to provide 56 hours of paid sick leave per year;

4. The aptly-named Paid Vacation Act (2009), which would require employers to provide one workweek of paid vacation per year; and

5. The pièce de résistance, the Balancing Act of 2009, which incorporates all of the foregoing, plus expanding the FMLA to cover employers with 25 or more employees!

It is generally agreed that none of these bills--with the exception of the Parental Bereavement Act, is likely to have any success in the legislature. Either way, we'll be sure to keep you posted as the effort to makeover the FMLA continues.

Nearly half of employers still have not adopted a social-media policy, according to a survey recently released by Proskauer's International Labor & Employment Group. Making it worse, the survey found that more than 75% of employers are using social media to promote their goods or services. Yikes. There are other enlightening statistics, as well, including:

~29% block employees' access to social-networking sites;

~27% monitor employees' use of social media;

~43% have dealt with employee misuse of social media; and

~Nearly 30% of employers have taken disciplinary action for employee social-media misuse.

I can't imagine what the other half are waiting for--there's no better time than now to get started on that social-media policy that you've been thinking about. And there are plenty of resources available to help you get started. For example, I had the pleasure of contributing a chapter to a new book devoted entirely to the legal issues faced by human-resource professionals. Jon Hyman of the Ohio Employer's Law Blog edited the book and other employment-law bloggers contributed chapters. Think Before You Click, Strategies for Managing Social Media in the Workplace is available as a downloadable e-book. The authors discussed the legal issues of social media in a two-part podcast, HR and Social Media Round Table, with the Proactive Employer's Stephanie Thomas.

Does the NLRA prohibit an employer from terminating an employee for the employee's negative comments made about his or her job and posted on Facebook?

This has been the question of the mind of many employers and employment lawyers since late last year, when the NLRB filed a complaint against a Connectitcut employer for terminating an employee, in part, for comments she posted on Facebook about her supervsior. Claiming that the posts constituted activity protected by the NLRA, the complaint took aim at the employer's social-media policy as an unlawful infringement of its employees' rights.

Despite the small wave of panic that seemed to spread following the NLRB's issuance of the complaint, there was no real precedent to suggest that a well-drafted social media policy would be subject to an NLRA attack. For example, in 2009, the Board reviewed a social-media policy and determined that it did not interfere with the rights provided by the NLRA.

And, in May, the NLRB's General Counsel issued an Advice Memorandum in which it found that an employer had not violated the NLRA by terminating an employee for posting negative comments about the employer on Twitter. But, earlier that month, the NLRB announced that it had issued a complaint against a non-profit for allegedly terminating five employees for their Facebook comments. And the Chicago Regional Office issued a complaint at the end of the same month against a car dealership for firing an employee based on his complaints about an upcoming promotional event that he . . .you guessed it. . . posted on his Facebook page.

It appears that the tide has turned yet again--this time in favor of employers. The NLRB's Division of Advice has issued three Advice Memoranda, each of which directly addresses the termination of an employee for comments made on social-networking sites. In each, the Division concluded that there had been no unlawful activity by the employer because the termination decisions were based on employees' personal gripes, which fall outside the scope of protected activity, and which constituted acts of misconduct for which the employees could be terminated.

Seth Borden, at Labor Relations Today, has posted an excellent and concise summary of each of the three cases, which include JT's Porch Saloon, Wal-Mart, and Martin House. (I've combined the three memoranda into a single PDF document, available here).

In each of these cases, the critical question is whether the employee has engaged in protected "concerted activity." As the Division explained, comments made "solely by and on behalf of the employee" are not concerted activities under the NLRA and are not subject to the protections of that law. Thus, these three memoranda serve as important reminders of a fairly basic idea--interpersonal disputes or gripes, without more, may be a lawful basis for discipline or termination.

The lesson for employees? Learn to get along with those with your coworkers and supervisors. If you can't play well with others, don't publicize it. And, finally, don't post it online if you don't want it to be repeated over and over and over.

Natalie Munroe, a high-school English teacher in Bucks County, Pennsylvania, was suspended after her personal blog, on which she'd written some not-so-nice comments about her students, came to light in February. According to the Huffington Post, the school district has determined to end the suspension and will reinstate the teacher in time for Fall classes. Interestingly, though, her attorney's comments seem to indicate that Ms. Munroe would prefer to be transferred. I'll leave it to others to speculate about the reasons for that preference, if, in fact, that is the case.

The question for readers, though, is this:
Can you forgive the social-media missteps of your employees? Perhaps more important, is whether social-media mistakes made by employees that negatively impact the employer should be forgiven?

I suggest that, although there's no certain answer to either of these questions, one thing is for sure. Wise employers will use this and other news stories like it as talking points for internal discussions now--before they're faced with similar situations. Discuss how your organization would have handled, for example, a supervisor who posted similar comments about her direct reports on her personal blog. Does your policy cover this situation? Having this discussion can identify holes in your policies and can also help you get a sense of how well your organization understands these issues, as well as the potential reaction it would face internally should it have to make this type of decision in the future.

For more on my take on the Natalie Munroe story, you may be interested in listening to my interview by the NPR Boston program, Here & Now.

The FMLA requires an employee to receive (unpaid) leave for certain family and medical reasons. Employers must provide certain notices to employees, determine employees' eligibility for FMLA leave, and track leave time in accordance with the FMLA's complex regulations. A recent opinion from the Third Circuit, though, makes clear that the employer isn't the only one obligated to follow the FMLA's many rules.

In Prigge v. Sears, the employee applied for FMLA leave, telling his employer that he was suffering from prostrate cancer, which had been in remission. In fact, though, the employee needed the leave for seek treatment for Bipolar Disorder. About 8 months after he was hired, he was hospitalized due to depression, at which time he confessed to his employer the real reason he had been missing work.

Before returning to work, the employee was supposed to provide documentation to support his absences. Although he provided some of the medical certification, he never complied fully with his employer's request for information. He was subsequently terminated and later filed suit.

In defending against the lawsuit, the employer offered two reasons for terminating the plaintiff-employee: (1) the employee's failure to provide the required documentation; and (2) the false reasons offered by the employee as the basis for the leave.

The district court ruled in favor of the employer, finding that, although the employee may have been entitled to the leave that he took had he been honest about the reasons for it, he became ineligible for the protections of the FMLA when by lied about his illness. Without the protections of the FMLA, there was no basis for liability and the case was dismissed.

Here's what this case teaches us--employees must tell the truth to be protected by the FMLA. And by "truth," the court means, the "whole truth," including the reason that leave is needed, as well as the underlying illness.

Prigge v. Sears Holding Corp., No. 10-3397 (3d Cir. June 23, 2011).

Did you know that the U.S. Department of Labor is in the blogosphere? Well, it certainly is. The "official blog" of the DOL is named, "Work in Progress." Catchy, isn't it? And the social-media engagement doesn't stop there. The DOL recently announced that it is sponsoring a contest to solicit employment- and employment-law-related apps.

Readers may recall the moment of shock and alarm they felt when we reported that the DOL had released its first timekeeping / FLSA-compliance app, designed for workers to log their time in a system other than the employer's official timekeeping system.

The DOL's recently announced contest may give readers a similar feeling. According to the DOL's blog post announcing the contest, the intended users of the apps include those looking for work, "workers who want to improve their skills," and "consumers who want to know that the businesses they use value safe, healthy, and fair workplaces."

There are two DOL-sponsored app contests. The first DOL app challenge seeks an app that uses data from the Bureau of Labor Statistics "help people plan their education, find the skills they need, make informed decisions about potential career changes, know what to expect when the move to a new town, or negotiate better pay and benefits with employers."

The second, called the "informAction app challenge" seeks apps to "showcase data from Occupational Safety and Health Administration (OSHA) and Wage and Hour Division (WHD)." Although this is even more vague than the first contest, the goal seems to be for "consumers and workers . . . to be able to view inspection and compliance information from the hotels, motels, restaurants and retail stores they shop at, and use it to take educated action."

What publicly available wage-and-hour data is going to help consumers make more informed choices, I am not sure.

There's a hefty cash prize for the winners but the deadline is short: September 14. If you're a developer interested in taking on either of these government-sponsored app "challenges," you can visit http://developer.dol.gov/ for more information.

If you're an employer, you only can wait with eager anticipation to see what the next employment-law-related app will be.

The FLSA continues to strike fear in the hearts of many employers. And for good reason. The law is difficult to understand and not always easy to apply. Moreover, the penalties for failure to comply are steep and litigation of an FLSA claim--particularly one brought as a class (collective) action--is costly.

The U.S. Supreme Court's recent opinion in Kasten v. Saint-Gobain Performance Plastics Corporation gives employers yet another reason to worry about the FLSA. In Kasten, the Supreme Court ruled that an employee who complains to his employer about unpaid wages has engaged in "protected activity" under the FLSA. If the employee is subject to some adverse action (i.e., termination), in retaliation for his complaint (protected activity), the employer can be held liable. The critical holding in Kasten is the Court's finding that, to qualify as a protected activity, the complaint need not be written; oral complaints are covered under the anti-relation provision of the FLSA.

The U.S. District Court for the Middle District of Florida (Tampa), is one of the first courts to apply the Kasten decision and may be the very first to decide a retaliation claim in the context of social media. In Morse v. JP Morgan Chase & Co., the plaintiff, Lilli Morse, alleged that her former employer failed to pay her overtime wages. She also alleged that she was terminated in violation of the FLSA's anti-retaliation provision when she complained on her Facebook page.

The employer moved to dismiss both counts. The court ruled that the plaintiff had pleaded sufficient facts on her unpaid-overtime claim but dismissed the retaliation claim. The question before the court on the motion to dismiss was:

Whether a posting on an employee's Facebook page constitutes the filing of a complaint within the meaning of the FLSA.

Morse does not allege that she made anything close to a serious complaint to her employer. In fact, she never complained to her employer at all. She simply voiced her disagreement with her employer's payment practices on her Facebook page. This "letting off steam" falls far short of the activity protected by [the FLSA's anti-retaliation provision].

Morse v. JP Morgan Chase & Co., No. 8:11-CV-779-T-27EAJ (M.D. Fla. June 23, 2011).

Employment-related background searches are commonplace today. For the past few years, there has been quite a bit of controversy over background searches that include searches of social-networking sites, such as Facebook and Twitter, for information about potential job candidates.

Personally, I’ve spoken to only one employer who outsources social-media background checks to a third-party vendor. I talk to a lot of employers about this topic, so I’d guess that there aren’t many engaging in this practice and probably for good reason. One of the features of searching online for information about candidates is that it’s free, which would be eliminated if outsourced.

Of course, there are risks that come with these searches, too, particularly if not done properly.
I’ve written about the risks and benefits extensively and have detailed the best way an employer can conduct these searches with minimal legal risk. A different way to minimize risk is by outsourcing these social-media searches.

This idea may seem even more attractive—despite the added costs—thanks to the Federal Trade Commission. According to Kashmir Hill’s blog on Forbes.com, the FTC investigated a company that performs these social-media background searches, Social Intelligence Corp., and concluded that its background checks complied with the Fair Credit Reporting Act. The FTC determined that Social Intelligence Corp., as a vendor for employers, may continue to search for Facebook photos and profile information, provided it continues to do so in a way that complies with the FCRA. In other words, the “old” rules still apply—even in the world of new media.

For more information about how employers can integrate social-networking searches into their job-screening process, see my three-part article on Screening Job Applicants With Facebook, Part 1, Part 2, and Part 3