Delaware Employment Law Blog

Employers who request an employee's or job applicant's Facebook password continue to face pushback in legislatures across the country. As I posted last week, several states have introduced bills that would prohibit this type of coerced Facebook access. These states are following Maryland's example--Maryland was the first (and only, at the moment), to pass this type of law.

Two U.S. Senators were the first on the bandwagon, though, but their bill was unsuccessful. But a new version of the bill made its way back to the House of Representatives on Friday, courtesy of New York congressman Eliot Engel (D).

The bill, Social Networking Online Protection Act (SNOPA), which is cosponsored by Rep. Jan Schakowsky (D-IL), would restrict current or potential employers "from requiring a username, password or other access to online content," reports ZDNet.com. Specifically, the bill would prevent employers from seeking access to social networking sites "to discipline, discriminate or deny employment to individuals, nor punish them for refusing to volunteer the information."

SNOPA, like some of its state-law counterparts, would extend to colleges, universities and K-12 schools.

Stay tuned as this rapidly changing area of the law continues to develop.

See also:
Employers Who Demand Facebook Passwords from Employees. Oy Vey.
Maryland Law Makes It Unlawful to Request Facebook Passwords from Job Applicants
California Law Moves Closer to Prohibiting Employers From Requesting Facebook Passwords From Applicants
Should Cyberscreening by Employers Be Legislated?
Lawfulness of Employers' Demands for Employees' Facebook Passwords

The EEOC released Guidance on the Consideration of Arrest and Conviction Records Under Title VII of the Civil Rights Act of 1964 (PDF)
This guidance, issued on April 25, 2012has been much anticipated since the EEOC held a public hearing on this topic last summer. If you were not already aware of the issue, the crux is this: arrest and incarceration rates are significantly higher in certain ethnic groups than others. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Therefore, if an employer exclude individuals based solely on their criminal records, that decision is likely to disproportionately affect certain ethnic groups, thereby violating Title VII.

The Guidance discusses the difference between arrest and conviction records, and explains what factors must be considered in determining whether or not consideration of criminal history will be determined to be "job related and consistent with business necessity."

The Guidance does not, however, address credit checks, which were also the topic of a public hearing by the EEOC. Some sources have indicated initial drafts of the guidance provided that there would almost never be a business necessity to use credit for employment--and stirred up quite a bit of controversy. For now, though, it remains to be seen what the final guidance on credit checks will say.

The release of the Guidance on criminal records was perfectly timed with YCST's upcoming Annual Employment Law Seminar, on May 9, when Lauren Moak and I will discuss the topic of background checks in a dedicated session. For a complete analysis of this Guidance and what it means for employers, we will see you there!

Maryland was the first state to pass legislation prohibiting employers from requiring an employee or applicant to turn over his or her Facebook password or log-in information for other social-networking sites.

On April 19, 2012, a similar law moved forward in the California state legislature.

And there are others. Here's a quick run-down of other states that are considering similar legislation:

• Michigan (H.B. 5523), has a bill that would restrict employers and educational institutions.
• Minnesota (H.F. 2963)
• Missouri (H.B. 2060)
• New York (S.B. 6938)
• South Carolina (H.B. 5105); and
• Washington (S.B. 6637).

See also:
Employers Who Demand Facebook Passwords From Employees. Oy Vey.
Should Cyber-Screening Be Legislated?
Lawfulness of Employers' Demand for Employees' Passwords

Maryland was the first state in the country to pass legislation that would prohibit employers from requesting or requiring an applicant or employee to turn over his or her password to a social-networking account, such as Facebook. As I mentioned in the end of my post about the Maryland bill, California and Illinois had similar pieces of legislation in the works.

Yesterday, California inched closer to become the second state to adopt this new type of privacy law, reports the Sacramento Bee.

Senate Bill 1349 bans employers and educational institutions from requiring or formally requesting in writing that prospective or current employees and students to hand over their user names and passwords or provide access to the account. The bill, introduced by Sen. Leland Yee (D), was approved by the Senate Education Committee 7-0 and now heads to the Senate Labor and Industrial Relations Committee for consideration.

See also
Employers Who Ask for Applicants' Social-Media Passwords. Oy Vey.
Should Cyber-Screening Be Legislated?
Lawfulness of Employer's Demand for Applicants' Facebook Passwords

Employers have been cyber-screening job candidates for years now. Although reports vary on how many of the nation's employers are Googling applicants, officially or unofficially. But the practice is a reality.

What also is a reality is the many variations of cyber-screening that exist. On the most moderate end of the spectrum are employers who have instituted a legally defensible practice, as I've written about previously. On the most extreme and unsavory end are employers who require applicants to turn over passwords and log-in informaiton for their social-networking accounts. Bozeman, Montana was the first employer to make the news for this practice; Maryland's Department of Corrections was the most recent.

Many employment lawyers, including me, strongly object to this practice on numerous grounds, not the least of which is the fact that it violates the terms of service of the social-networking sites. And now, it seems, that there may be some politicians who feel the same way.

Law.com reports that a California legislator has introduced a bill that would protect employers who don't cyber-screen job applicants. And bills are pending in Maryland and Illinois that would prohibit employers from asking applicants for log-in information for social-networking sites. The Maryland law is likely a result of the negative publicity the State received after news broke that the Department of Corrections was requiring applicants to turn over their password and log-in information.

So, will these laws be the wave of the future? Perhaps. Are they necessary? Not really. Or at least they shouldn't be. The terms of service for social-networking sites, such as Facebook, prohibit this type of activity in the first instance. But, as long as stories like the one from the Maryland Department of Corrections keep making the headlines, laws like the ones currently pending may continue to appear in state legislatures.

Want to know the right way to cyber-screen applicants? Check out these articles:
Screening Job Applicants with Facebook: Part 1, Part 2, and Part 3.

Criminal background checks of job applicants seems to have reached a tipping point as a topic in employment-law circles. So, what are the key components leading to this perfect storm of EEO laws?

1. Most Employers Consider Criminal History
According to a 2010 study conducted by SHRM, more than 9 out of 10 employers polled conducted criminal background checks on some or all job candidates as part of the pre-employment screening process. The study found that 73% of employers conduct these checks for all candidates, while 19% used them only for selected positions.

2. More Adults Have Criminal Records
According to a March 2011 study by the National Employment Law Project, more than 1 in every 4 adults are estimated to have a criminal record. Thus, the use of criminal-background checks in the job-screening process affects more than one-quarter of all potential applicants. See 65 Million "Need Not Apply" (PDF)

3. EEOC's Public Meeting
In July 2011, the EEOC held a public meeting to "Examine Arrest and Conviction Records as Hiring Barrier," focusing on the use of criminal records by employers for employment screening background checks. The purpose of the meeting was to identify the ways in which criminal histories are being used, how they can be used appropriately, the legal guidelines for doing so.

4. Ban-the-Box Movement--Nationally and Locally
Around the country, cities, counties, and municipalities are adopting laws and ordinances known as "ban-the-box" laws. The reference is to remove from job applications the box that an applicant is asked to check to indicate that he or she has a criminal history. By removing the "box" question, the idea is that an applicant will not be automatically excluded from consideration as a result of criminal background.

Philadelphia is one of the latest cities to join this movement. The Fair Criminal Record Screening Standards Act, which was signed in April 2011, took effect on Friday, January 13, 2012. As detailed in this earlier post, the Act prohibits employers from inquiring during the fir initial interview about a candidate's arrest history.

5. EEOC Settles Lawsuit for $3M
The most recent development has been the settlement of a lawsuit brought by the EEOC against Pepsi Beverages Company ("Pepsi"), in which Pepsi agreed to pay $3.13 million as a result of its policy, which was revised during the EEOC's investigation, and which prohibited the employment of applicants with an arrest history, regardless of whether the arrest had led to a conviction. The payment will be split among more than 300 applicants who, according to the terms of the conciliation agreement, were adversely affected by the policy between 2006 and 2010. A portion of the sum will be allocated for the administration of the claims process. The suit alleged that the employer's criminal background-check policy violated Title VII's prohibition against race-based discrimination.

How can an employer avoid the perfect storm? There are two keys. First, and most important, do not use criminal histories as a per se bar to employment. Second, use the EEOC's suggested best practices to determine whether a particular candidate's criminal history should be considered and, if so, how to do so in a legally sound way. For more information on this process, see these earlier posts:
How Considering a Candidate's Arrest History Could Land You In EEOC Jail
Research Puts 5-Year Expiration Date on Criminal Records Used for Background Checks
Is Creditworthiness a Protected Characteristic? Yes, says EEOC

Philadelphia is the latest city to prohibit employers from asking job applicants to disclose their criminal history. The Fair Criminal Record Screening Standards (PDF) was signed by Mayor Nutter on April 13, 2011, and goes into effect on July 13. The purpose of the new law is to increase employment opportunities for candidates who have a criminal history by ensuring that the candidate will be “judged on his or her own merit during the submission of the application and at least until the completion of one interview.”

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees operating in the City. It contains two key prohibitions. First, employers may not ask candidates to disclose (or otherwise consider) any arrest that did not result in a conviction. Second, employers may not ask about any criminal convictions during the application process or during an initial interview. After the first interview, employers may ask the candidate about the candidate’s criminal history—but not arrest history. The ordinance provides for a fine of up to $2,000 per violation.

Employers operating within the City of Philadelphia should revise their job applications to eliminate any questions regarding an applicant’s criminal history. Employers who are not subject to the Ordinance, though, also may want to consider limiting their reliance upon applicant’s criminal backgrounds during the hiring process. The EEOC “discourages” employers from considering a candidate’s arrest records. The EEOC published an informal discussion letter in 2008 on the use of conviction records in hiring. And a study by Carnegie Mellon showed that convictions older than 5 years were not indicative of future behavior.

This type of prohibition, also known as "ban-the-box" legislation, has been adopted by several states and cities around the country.  A similar restriction has been to prohibit or limit employers' consideration of a candidate's credit history as part of the hiring decision.  At last check, legislation was pending in approximately 16 states to prohibit employers from considering creditworthiness to varying degrees.  As the economic forecast continues to be grim and the number of unemployed remains high, it makes sense that state and local governments will continue to take legislative measures that impact the hiring process. 

EEOC has filed a particularly newsworthy lawsuit against Kaplan Higher Education Corp.The suit is based on Kaplan's alleged consideration of candidates' credit histories during the hiring process.  EEOC takes the position (and has, for quite some time), that employers may be engaging in unlawful employment discrimination by using a candidate's credit history when deciding who to hire. EEOC contends that this practice, in which many employers engage regularly, has an unlawful discriminatory impact based on race and is neither job-related nor justified by business necessity.  In short, EEOC alleges that employers, including Kaplan, are disproportionately disqualifying black candidates due to credit ratings.

Although I understand that there is a comfort to employers in using credit histories to screen clients, comfortable isn't always the most desirable outcome.  When an employer asks me about whether to rule out a candidate based on the candidate's credit history, I usually suggest that it's very possible that a top performing employee can be so focused on being a top performer that their personal lives are left unattended. In other words, you can imagine an employee whose personal credit is less than perfect because they're too focused on work--not the worst employee that I can imagine, by far.

Another scenario is an employee who goes through a difficult divorce, which results in a poor credit rating.  Or, alternatively, if the employee has had a serious family illness.  This, also, can lead to financial difficulty and, in turn, to a less-than-stellar credit rating. 

Of course, none of these scenarios are connected by race or ethnicity.  Thus, I can't say that I am particularly compelled by EEOC's position in the Kaplan case. But neither am I compelled by a credit score--especially not in a difficult economy or in any economy when looking for the best possible employee for the job.

One final note.  Illinois recently passed a law prohibiting employers from disqualifying candidates based on credit history.  The law takes effect on January 1, 2011.  Hawaii, Oregon, and Washington have similar laws.  And, as of late summer, 2010, similar bills were pending in 15 states.  So it seems indisputable that the practice is becoming more and more disfavored.

Other Resources:

Washington Post article re: EEOC v. Kaplan

EEOC Press Release

Employers who conduct background checks on candidates must be careful to comply with a variety of governing laws.  A particularly hot topic in this area is criminal-background checks. Many (if not most) mid- and large-sized businesses in the U.S. are performing background checks, including criminal-history reports, on at least some job candidates.  But criminal histories can be complicated.  The EEOC has quite a bit to say about what you do with the information you receive in response to these requests.  (See How Considering a Candidate's Arrest Records Could Land You In EEOC Jail; Potential Delaware Judge's Criminal Record Raises Questions for State Senate).

One of the EEOC's concerns is the length of time that has passed since the crime occurred and the sentence imposed. Generally, employers should not consider a criminal histories that are more than 7 years old.  There are, of course, exceptions to this rule. As far as I'm aware, the EEOC's 7-year rule is not tied to empirical data that supports seven as the magic number. 

But a recent study by Carnegie Mellon provides the science that may be key to answering the question, How long does an individual have to be "clean" before he can be considered "redeemed" for employment purposes. According to the study, 5 years.  The study estimates that, after five years without a run-in with the law, an ex-convict is no more likely to commit another crime than other citizens of the same age.  Most committed new crimes within the first few years after their arrest, perhaps adding legitimacy to the use of criminal records in the first place.  But only a small number of those studied were re-arrested after that 5-year mark.

Many states already have legal limits on the use of criminal histories by employers. Some states prohibit their use altogether. Others require the employer to disclose their request to the candidate prior to receiving the records.  And some impose expiration dates--just in case the EEOC Guidance isn't persuasive enough.  This study may encourage other states to put limits on the length of time that a criminal history can be considered for the purposes of hiring decisions.

Job applicants lie on their resumes.  They lie a lot.  Some estimates say that as many as 62% of resumes contain embellished education and employment histories.  This is why, as we've posted before, employers must screen applicants.  One recent example of an employee caught with his hand in the cookie jar, so to speak, is Robert Irvine.  The popular host of the Food Network show, "Dinner: Impossible," admitted that he had spiced up his resume when it was discovered that he had not cooked for the Royal Family as he'd represented during the application process.  He was released from his contract and a substitute was hired for the rest of the season. 

Apparently, though, his cooking and his charm were enough to warrant the forgiveness of the TV network.  Irvine is set to return to "Dinner: Impossible" this season.  He's said to be coming back for six new episodes, which will tape in December and January and air in March.  His previous and soon-to-be employer had the following to say about its forgive-and-forget attitude to the resume indiscretion:

[Irvine] has taken responsibility and made a conscious effort to clear the air, rebuild the relationship with Food Network and apologized for the earlier inaccuracies.

Would you be so forgiving?  Would it matter whether the employee was a well-loved celebrity of sorts with big money-making potential?

Employers have used MySpace to screen potential job candidates.  Employers have fired employees for something posted on the employee's Facebook and MySpace pages.  Even the incoming White House administration is requiring applicants to disclose any potentially embarrassing content on social networking sites.  So we've seen the role Facebook and MySpace have played in hiring and firing decisions.  But there is a new use for employers--using Facebook and MySpace in litigation.  Specifically, litigation against former or current employees.   

Dan Schwartz at the CT Employment Law Blog pointed out this new use as described in an article at Law.com entitled "Are Social Networking Sites Discoverable?" The article concludes that the information found on a plaintiff's MySpace or Facebook page is likely discoverable during litigation.  From the article:

Although these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant's private life and state of mind. The converse thus becomes the moral for litigation counsel -- this new generational fount of potentially discoverable information should be high on the list of priorities when evaluating a new matter.

Dan raises a great point--what if the employee's website contains comments that would disprove his claim?  For example, if an employee is claiming national-origin harassment and his co-workers said that there was an environment of friendly, though inappropriate (but not unwelcome), banter between the young males in the department.  The employee claims that he never engaged in this banter but, instead, he was subject to frequent comments so severe that it made his workplace a hostile environment.  So there's the employee's word and the word of his co-workers.  Not much to go on as far as a defense goes. 

But what if the employee's MySpace page was peppered with inappropriate comments of his own?  And what if the comments were exactly the ones identified by the co-workers? 

It's not difficult to imagine this potentially case-changing scenario.  It looks like MySpace and Facebook are here to stay as a tool for employers to learn potentially crucial information about employees--old and new.

Potential job candidates beware: your Facebook page is not off limits.  At least that's the case if you're applying for a job in Presidential-elect Obama's administration.  Candidates for Cabinet and other high-ranking positions must complete a seven-page, 63-item questionnaire, which asks questions about almost every imaginable detail of their personal lives.

Some of the areas on the application include:

• real estate and financial investments;
• involvement in civil or criminal lawsuits;
• immigration of any domestic help they may have hired;
• names and phone numbers of past live-in lovers;
• whether any family member owns a gun; and
• financial and tax information.

One of the more unusual topics on the questionnaire is a real "sign of the times."  Potential candidates must disclose Facebook pages and blogs.  CNN reports that job applicants will need to turn over any and all information that could potentially cause embarrassment to the next administration, including their social networking pages--past or present.

So, will this silence some of the critics who advocate against employers who run Facebook and MySpace searches on candidates?  If it's a suitable background-check method for potential members of the presidential Cabinet and international ambassadors, doesn't it seem like a reasonable idea for potential members of your organization?

For more on this topic, see:

New Study Shows Increase in Online Applicant Screening

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

And for employers who are considering the practice of Online Applicant Screening but who don't know where to start, be sure to catch the easy-to-understand video, Video Resources: How to Set Up a Facebook Account for Applicant Screening, available under the Resources > Video Resources tab at the top of the page.

1 in 5 employers use social networking sites to screen prospective employees.  That's according to a new study by Careerbuilder.  34% reported that they rejected candidates based on what they discovered during their online search.  We've written quite a bit about this practice, including what to look for if you do elect to incorporate online background checks into your hiring repertoire.

Here's what other employers have been looking for and, specifically, what will prompt them to reject a candidate:

• 41% - content posted about alcohol or drug use
• 40% - “inappropriate of provocative” pictures
• 29% - candidate appeared to have poor communications skills
• 28% - candidate bad-mouthed their previous company or fellow employee
• 27% - candidate lied about qualifications
• 22% - discriminatory comments related to race, gender, religion, etc.
• 22% - candidate’s screen name was unprofessional
• 21% - candidate was linked to criminal behavior
• 19% - candidate shared confidential information from previous employers

Unlike some bloggers, I am in favor of this practice--so long as it is performed with certain safeguards.  For example, Nick Fishman's concerns about the accuracy in candidate's Facebook or MySpace pages (1) have not materialized to any significant extent that I've seen; and (2) are allayed by simply asking the candidate about whatever it is that the employer found that may acting as a barrier to employment.  Just as with criminal backgrounds, employers should not make a per se decision without first giving the candidate an opportunity to explain the results of the report and any circumstances surrounding the arrest and/or conviction.  The same interactive discussion should occur if an employer finds something on the candidate's social-networking site that gives them concerns. 

One thing that opponents of this practice seem to overlook is that employers have an affirmative duty, legally, and for business reasons, to make the best hiring decisions possible, using all of the information reasonably available to them.  The only real threat of suit here is if the employer does not take the few minutes required to do an internet search on a candidate who, after being hired, commits an act of workplace violence. If the employee's MySpace page was filled with images of violence and words of rage, you can bet your last nickel that the employer will face a negligent hiring lawsuit for hiring the employee without taking the free and quick step of running that internet search. 

For prior posts on this topic, see:

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

And for employers who are considering the practice of Online Applicant Screening but who don't know where to start, be sure to catch the easy-to-understand video, Video Resources: How to Set Up a Facebook Account for Applicant Screening, available under the Resources > Video Resources tab at the top of the page.

Background checks have been so popular on the Delaware Employment Law Blog that they could almost make up a blog all by themselves.  Lucky for us, we don't have to.  Nick Fishman and his group have the topic of background checks all wrapped up at the EmployeeScreen IQ Blog.  Nick's content is always top-notch but this new endeavor appears to be hard to beat. 

EmployeeScreen IQ Blog has launched the EmployeeScreen University.  As described on the blog, EmployeeScreen Univ. is a "first of its kind interactive, educational Web site for security, risk management and human resource professionals that features regularly updated, free background-screening information; all aimed to help hiring managers make better hiring decisions."  The new site is intended to act as a comprehensive resource for all things related to background checks, references, employee screening, and pre-hire testing. 

Recently, the site has added a few exciting new features, including a Guest Articles section, where you can find articles written from a "unique point of view about background checks and, or other related topics from industry insiders and experts.

Sample of Guest Contributors includes:

• Ron Bower, Vice President and Director of Talent Sourcing at AmTrust Bank on Developing Employee Referral Programs
• Keith Greene, former Vice President of Workforce Readiness at SHRM on developing strong partnerships with background screening organizations
• Michael Sankey, Founder and CEO of BRB Publications on how to search criminal records.

Be sure to bookmark the site for later.  And, in the meantime, you can check out a few of our  most recent posts on background checks and employee screening:

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

Facebook, MySpace, and other social networking sites should be used as applicant-screening tools.  And here is conclusive proof--the Burger King-Tub Boy, a/k/a, "Mr. Unstable," Timothy Tackett. 

Tackett, 25, posted a video to his MySpace page, showing him taking a "bath" in the sink.  The sink, though, was in his employer's restaurant at the time he bathed in it.  In the nearly four-minute video, "Mr. Unstable" is seen bathing in a bubble-filled utility sink at the Burger King in Xenia, Ohio, where he had been employed.  Predictably, Tackett and four to five other employees on the midnight shift were terminated days after the video was posted.

So what's the take-away lesson from this unappetizing story? 

First, this is a lesson to our Gen Y friends and coworkers--yes, we mean it when we say that your social-networking escapades are not as private as you think. 

Second, these fiascos not only might prevent you from getting hired but also can get you fired if your employer learns of off-duty conduct that turns its corporate stomach. 

Third, this should serve as a poignant example of why employers must be knowledgeable with Web 2.0.  Your employees are online.  Employers, you need to be online, too. 

{There's no more excuses that you "don't know how" to use the social networking sites.  Just watch the step-by-step video tutorial, How to Set Up a Facebook Account for Applicant Screening}