Delaware Employment Law Blog

An appeals court in California recently decided that emails sent by an employee from her work email address to her attorney are not protected by the attorney-client privilege. In the case of Holmes v. Petrovich Development Company, LLC, an employee sued her employer for wrongful termination. Prior to filing her lawsuit, she had exchanged emails with her attorney, using her office email account. The employer used the emails in its defense, and the employee objected, claiming that they were protected by attorney-client privilege.

The Court disagreed and found that the emails were not protected by the privilege.  The court relied on the fact that the employer’s handbook expressly stated that an employee’s emails might be monitored. Such a warning, the Court concluded, made the employee’s emails akin a conversation held in the company’s conference room, with the door open, speaking in a loud voice. The California Court’s decision is in keeping with the Supreme Court’s 2010 decision in City of Ontario v. Quon, in which the Court held that an employee did not have an expectation of privacy in his text messages, sent using an employer-provided pager. This case, however, takes Quon to its logical conclusion, holding that in the absence of a reasonable expectation of privacy, the attorney-client privilege cannot attach.

As Delaware employers should know, they are required by statute to inform employees prior to monitoring an employee’s telephone, email, or internet use. 19 Del. C. § 705. Thus, under the California Court’s logic, any Delaware employee who has received notice of email monitoring under Delaware law has waived the attorney-client privilege as to any emails exchanged with the employee’s attorney, using his or her work email account. It is important to remember that the Delaware courts have not ruled on the issue of attorney-client privilege for work emails. However, this case is a valuable reminder that electronic communications are rarely as private as they appear, and we should all conduct ourselves accordingly.

Delaware readers may be interested a few upcoming events designed to help prevent identity theft. Delaware’s Identity Theft Working Group is sponsoring these events during the week of October 18-24, which is National Protect Your Identity Week.

Oct. 20:  Senior Identity Theft & Fraud

This educational event will take place from 10:30 a.m. – 12:30 p.m. at the Modern Maturity Center in Dover, located at 1121 Forrest Avenue.  You can RSVP for this event and get more information by calling 302-734-1200.

Oct. 21:  Protecting Small Business from Identity Theft

This event is sponsored by the Better Business Bureau of Delaware and will be held at the Wilmington Double Tree Hotel, located at 700 N. King Street from 7:45 a.m. till 10 a.m.  RSVP for the event by calling 302-230-0112 ext. 19.

Oct. 22:  Working Together to Combat Identity Theft

The Federal Bar Association is co-sponsoring a Law Enforcement and Financial Institution training titled “Working Together to Combat Identity Theft” on October 22, 2010, from 8:00 a.m. to 12:30 p.m. at Theatre N, First Floor, 1007 Orange Street, Wilmington, DE 19801.  The October 22 training will include the following discussion topics:

• Elements of Proof of Identity Theft Crimes:  A Federal and State Overview
• An Identity Theft Investigation Case Study:  What Worked and Why
• Addressing Expectations of Both Financial Institutions and Law Enforcement In Investigating Identity Theft Cases
• Panel Discussion:   Financial Institution Investigators and Federal and State Investigators

In order to register for this training, which will be of primary interest to prosecutors and those lawyers who work with clients to investigate matters relating to identity theft, submit this registration form by October 18, 2010.  If you RSVP for the training, please indicate that you are an attorney who will wish to seek Delaware CLE credit for the training.  The training is free.

Oct. 23:  Shred Event

Consumers may bring up to 3 file-size boxes of documents for shredding to the Boscov’s at the Dover Mall between 9 a.m. and 1 p.m.  The Delaware Attorney General is the sponsor of this event and more information can be found at www.attorneygeneral.delaware.gov.

You can print the following poster, which includes information about all of these events. 

Identity Theft Event Poster

Employers in any state can celebrate National Protect Your Identity Week by educating employees about how to protect themselves from identity theft.

Social security numbers, gender, and dates of birth of approximately 22,000 State of Delaware retirees was accidentally posted online.  According to the AP as reported in the Newark Post, Aon Consulting accidentally posted the information to the procurement section of the State's website as part of an RFP for the State to solicit bids from insurance companies to provide vision benefits to current employees and retirees.  The data remained online for five days before being removed.  The employees' names were not posted.

In response to the data breach, Aon is reportedly taking the following actions:

• Contact each affected individual by letter to inform them of the incident and the steps taken to address it;
• Post public notices in states where there are more than 500 affected individuals;
• Provide 1 year of free credit monitoring;
• Establish a toll-free phone line to respond to questions; and
• Notify U.S. DHSS.

This is an example of a data breach that did not involve any fault on the part of the employer (State of Delaware), thus demonstrating that, even when the employer takes all precautions, its employees' personal data may still be breached. 

More than a year ago, I posted about what an employer should do in the event that employees' confidential information is stolen or otherwise compromised.  (See What to Do If Your Employees' Confidential Data is Stolen).  In Delaware, and many other states, there is a law that addresses what obligations employers and other entities have.  (See 6 Del. C. Chp. 22, Credit and Identity Theft Protection).  The FTC's Identity Theft Site, including its Guide for Businesses, Protecting Personal Information (PDF), are two other helpful resources.

The best plan is one that you make in advance. There's no better time to review your internal response procedures now so you are prepared should your employees' confidential or personal information be publicized accidentally.

Should employers conduct online searches of job applicants? That's one of the questions I'm asked most often by employers when talking about social media.  One of the less commonly asked questions is whether employers should conduct the same type of online search after the hiring decision has been made.  In other words, should employers monitor their employees' online activities during employment? 

There are good arguments for and against this practice. For me, the most persuasive argument is logistics--it just doesn't seem realistic for most employers to dedicate the resources required to monitor employees' online habits.  But here's a recent story that shows why employers may want to run a search of current employees on Google. 

Inc.com reported the story about a single mother in St. Louis who, during the day, worked for a non-profit.  At night, though, she wrote an anonymous "sex blog" called "The Beautiful Kind."  She'd managed to keep her online identity a secret until Twitter came along. 

When she created her Twitter profile, she used her real name, thinking that only her handle would be visible. When she realized that her name actually appeared in her profile, she immediately removed it and adjusted the name field of her handle accordingly.  Immediately, however, was not quickly enough. 

Thanks to Topsy, a Twitter search engine, her original profile was cached and her real name was displayed next to her user handle. According to the blogger, senior management suggested that supervisors search the web for information about their employees.  When the blogger reported to work, she was fired by her boss, who had found out about her extracurricular "activities" on Topsy. The nonprofit claimed that it could not justify the risk to its public image caused by an employee's racy blog.

The interesting point to this story, aside from the idea of supervisors being encouraged by senior management to spend time surfing the web, is that the employee was terminated as a result of conduct that did not involve her job.  She was blogging during nonworking time on a computer not owned by her employer or connected to her employer's network.  In some states, where off-duty conduct is protected to varying degrees, the termination may be unlawful.  But, in Missouri, which does not have any laws offering such protection to employees, it would appear that the termination is entirely lawful.

And, if nothing else, this story is an excellent example of the principle that, if you put it on the Internet, you'd better assume that your boss is going to see it and is going to hold you accountable.

See these related posts for more about the impact of social media on employers and employees:

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

Breach of Noncompetition Agreement Via LinkedIn

Sure, You Can Use Facebook at Work . . . We'll Just Monitor What You Post

More Employers Searching Online for the Dirt on Candidates

Sample Social-Media Policy

5 Non-Negotiable Provisions for Your Social-Media Policy

State Off-Duty Conduct Laws and Facebook-Friending Policies

Follow me on Twitter @MollyDiBi

Employees love social networking. Some employers also love social networking, especially in the context of recruiting, onboarding, and engagement efforts. But employers are not so crazy about the use of Web 2.0 tools by employees.  The question is often asked whether employers may lawfully access an employee's (or applicant's) social-networking page.  And the answer, as any lawyer worth his oats surely will tell you, is "it depends."

There are a number of different contexts in which this question can arise and each has a different response.  For example, in the hiring context, employers often want to conduct a DIY background check by Googling a candidate or searching for the candidate's Facebook profile.

I've already said plenty on this topic and won't rehash it here.  (See More Good Advice on Best Practices for Use of Social Networks for Employers, Free Podcast: Employers' Use of Facebook, MySpace, and Other Social Networking Sites).  But, generally speaking, this presents only minor (and avoidable) potential legal issues.   

A different context occurs when an employer wants to view a current employee's Facebook or MySpace page.  Add to that the situation where the employer doesn't want the employee to know about it's "investigation" or where the employer sees something it doesn't like and takes adverse action because of it, and you've got an entirely different set of circumstances and associated legal issues.

A recent case in the U.S. District Court in the District of New Jersey is the perfect "flare-gun" case--sending a poignant warning to employers considering similar actions.  In Pietrylo v. Hillstone Restaurant Group, a waiter at the employer's Houston's restaurant created a MySpace page and group.  The group was private--only those who were invited by its creator could access the site. The waiter, Pietrylo, gave access to co-workers, who could then read postings or create postings themselves.

Social networking site Tagged.com is accused of stealing the identities of 60 million people. N.Y. Attorney General Andrew Cuomo announced that his office intends to file suit. In short, Tagged.com is alleged to have sent invitational e-mails that appeared to be from one of their users to one of the user’s contacts. The e-mail read that the recipient was being sent photos from his or her friend—the Tagged.com user. To view the photos, the recipient non-member, had to register for a Tagged.com account. Then Tagged.com accessed the new member’s contact list, restarting the cycle.

(via Death By Email)

This is a serious and unfortunate example of the wide-spread danger that can result the misuse of technology.  Combined with the far-reaching power of social media and, as this story makes clear, the potential impact can increase exponentially. 

Larry Mendte’s ankle bracelet came off yesterday. Mendte completed his six-month house arrest and is free to live out the rest of his two-and-a-half-year probation outside the confines of his Main Line home. The house arrest and probation constitute the sentence he received after pleading guilty to intentionally accessing the private e-mail account of his former co-anchor, Alycia Lane. 

Mendte was convicted under the Computer Fraud and Abuse Act (CFAA), which makes it unlawful to intentionally access a protected computer without authorization. In the last few years, employers have tried, with mixed results, to put this statute to work against employees who engage in cyber-sabotage.

In January 2009, for example, an employer filed suit under the CFAA against two former sales reps, alleging that the former employees had deleted information from their company laptops after resigning.[1] That case was dismissed, though, in a somewhat disappointing ruling from the District Court, which held that the intended purpose of the CFAA was limited to preventing and prosecuting computer hacking and did not extend to the misdeeds of former employees.

But in February 2009, another federal court declined to dismiss a claim under similar facts.[2] In that case, an employer sued former executives under the CFAA, alleging they’d e-mailed documents to their home computers when they were preparing to compete with the company.

So often, employers want to file a counter-claim in response to what they believe is a bogus suit filed for a former employee. The law rarely provides for this, though. For many employers and their legal counsel, the application of the CFAA to the wrongdoings of former employees is a developing area of the law with great potential.

[1] Lasco Foods, Inc. v. Hall & Shaw Sales, Marketing & Consulting, LLC, 600 F. Supp. 2d 1045 (E.D. Mo. 2009)

[2] Ervin & Ervin Smith Advertising v. Ervin, No. 8:08-459 (D. Neb. Feb. 3, 2009).

Online social networks (OSNs), such as Facebook and MySpace, have found their way into the workplace.  Employees' use of OSNs and the impact of that use on workplace productivity are topics all to themselves.  OSNs are also being used by employers, though, as well.  In fact, Facebook and similar sites are becoming increasingly common tools in employers’ arsenals.  Employers have found a number of ways to use technology to their advantage.

The various ways that employers are putting these tools to use span across the entire employment relationship, from pre-employment (recruiting), to potential employment (screening), and then all the way through the employment relationship (monitoring).  

I'm a guest blogger this week at LexisNexis' Workers' Compensation Law Center.  In today's post, I discuss the many ways that employers are putting Facebook, LinkedIn, and other, similar sites, to work in the workplace.  (See How Employers Are Putting Online Social Networking Sites to Work.)  Be sure to check out the post to learn about the variety of ways employers have utilized the very same type of technology that is considered one of the biggest drains on employee productivity. 

[Update to Change to Facebook's Privacy Policy Under Attack]  Here's the quick background of this post, if you don't know already: 

Facebook has privacy policy warning users that their content is "owned" by Facebook until they terminate their membership or permanently remove the content.  Facebook changes policy by adding one sentence, which states that, even after the termination of one's membership, Facebook retains ownership of that member's content--forever.  Facebook users are outraged and there is a public outcry about concerns for privacy rights. Facebook announces that the policy is legitimate and here to stay.

That gets you caught up through this morning.  But there's more to the story.  This morning, on CNN's American Morning, Facebook's Chief Privacy Officer, Chris Kelly, spoke about the outcry from users following the change in the policy's language.  And, it turns out, Facebook has been persuaded by the public voice.   In a total about face, (sorry but the pun is intended), Facebook has decided to again change its policy, this time to satisfy the concerned public. 

One of the most insightful points made by Kelly came as a reminder about just how private your content is not, once posted online.  From the transcript of today's show:

Well, we think it's incredibly important for people to realize the power that they can have in terms of choosing to put up information or not, and then also to whom they show that information.

The video can be viewed in whole at the CNN website: Facebook's About-Face

1 in 5 employers use online social networking sites (OSNs) to screen job applicants.  Some employers even use OSNs to monitor the activities of current employees.  (Think workers' comp fraud.)  If done properly and for the right purpose, I support the use of the Internet as a tool for employers.  But there are plenty of critics of the practice. 

Those who are against the use of sites like Facebook and MySpace to screen job candidates cite "privacy" concerns.  I don't buy it.  There is no reasonable expectation of privacy when it comes to information an individual voluntarily posts on-line.  Yes, there may be other problems if an employer creates a false identity for the purpose of "tricking" an individual into granting the employer permission to access his or her site or web page.  But, the simple act of viewing something that was published for the purpose of being viewed, does not seem like a privacy violation from my perspective. 

The possibility of identity theft has become a reality for tens of millions of credit and debit cardholders.  Yesterday, Heartland Payment Systems, a major payment processing company, revealed that its secure systems had been hacked and that the private data of millions of individuals may have been stolen.  This is said to be the largest data breach ever.

The N.Y. Time reports that those responsible for the massive theft could be part of an “international ring of hackers that are introducing breaches at a number of financial institutions.”  With an operation of this magnitude, it seems likely that this is the case--that the breach was a result of highly organized criminal entities.  But, more commonly, the theft of personal data is not so far-reaching or as complex.  An, often, it is the result of actions by an insider--an employee--who leaks the data for revenge or for money, or both.

For example, in December of 2008, an employee of Certegy Check Services, physically removed 2.3 million consumer data records to resell. The former employee sold consumer information to a data broker, who then sold it to a number of direct marketing companies.

Another example occurred in September of 2008, when Countrywide Mortgage notified the FBI that a former employee had sold customers' personal information to a third party, including names, addresses, social security numbers and application information. The FBI arrested the employee and reported that as many as two million people may have had their data stolen.

Then there was the case of the unauthorized sale of Britney Spears' sealed psychiatric information to the National Enquirer by an employee of the UCLA Medical Centre.  The employee was later prosecuted for the breach, was is believed to have been a series of disclosures over a period of several months.

Employers who've not yet implemented an effective procedure for responding to the unauthorized access of employees' personal data should consider the Heartland story a real wake-up call about the realities of identity theft.  No one is immune from a potential security breach.  But everyone should know what to do if one does occur. 

Identity theft refers to all types of crime in which someone wrongfully obtains and uses another person's personal data in some way that involves
fraud or deception, typically for economic gain.  Identity theft is a serious crime, the effects of which can take years to correct, not to mention the enormous amounts of time and the overall inconvenience that are required. 

Identity theft is a serious enough topic that there is good reason to write about it any time of year.  But right now, there are more reasons than ever.  First, there's the current state of the economy.  In difficult economic times, theft traditionally increases as people become more desperate in the search for resources.  Second, it's the holiday season, when the need for extra money increases, right along with depression rates and anxiety levels. Third, internet shopping continues to be a popular alternative to the stressful hustle and bustle of the mall.  Add these factors together and it's difficult to imagine identity theft rates slowing down significantly any time soon. 

Just last week, a coworker mentioned that she had recently had her credit card number "skimmed" at a gas station.  She didn't realize the theft had occurred, though, until Monday morning when she checked her online bank account and was stunned to see that the account was substantially overdrawn!  Another coworker said that she too had been subject to a similar fraud, though the credit card company had not been able to determine exactly how it had occurred. 

I experienced the same type of theft recently when my credit card number was used to make thousands of dollars in online purchases over the course of a few hours.  The number of purchases triggered my bank's security alerts and I was called to confirm the purchases.  Thankfully, the bank's quick efforts prevented any damage from being done.  But this conversation between three coworkers shows how surprisingly common identity theft really is. 

When it comes to protecting your personal information, awareness is key.  Below is a short summary of some of the basics about identity theft.  Employers should keep themselves and their employees in the loop by circulating this type of information during the holiday season.

How Does the Thief Get the Identity Information?

• Steals credit cards, wallets, or purses.
• Steals mail to obtain checks and credit-card numbers.
• Rummaging through trash to find documents containing personal identifying information.
• Completes a change-of-address form on behalf of the victim, thereby diverting the individual's mail.
• Use personal-identifying information obtained on the internet.
• Theft of business records either by stealing records or files or by bribing an employee to do the same.
• E-mail "phishing"-- a scam where the thief pretends to a bank or the government.
• Obtaining a copy of the victim's credit report by posing as a landlord or other person who would have a lawful right to the information.

What Does the Thief Do With the Identify Information?

• Go on spending sprees using your credit card
• Open new credit card accounts
• Open new checking accounts using your name,date of birth and social security number to write
  bad checks
• Change the address on your credit card accounts
• Take out auto loans in your name
• Rent a home in your name
• File for government benefits using your name (unemployment insurance)
• Give your name to police during an arrest
• Establish phone and wireless service in your name
• Declare bankruptcy in your name to avoid paying debts or eviction

Some of the national resources available to learn more about preventing, reporting, and correcting identity theft include the Identity Theft Resource Center, the Federal Trade Commission, and the U.S. Department of Justice. 

In Delaware, the Office of the State Bank Commission has developed several helpful outreach and education programs.  And, for additional information specific to employers trying to assist employees who've been subject to a data security breach, see What to Do If Your Employees' Private Data Is Stolen.

Larry Mendte, former Philadelphia news anchor, was sentenced today in federal court after pleading guilty to reading the emails of his former co-anchor, Alycia Lane, and forwarding the information along to reporters, reports the Philadelphia Inquirer.   Mendte was sentenced to three years of probation, a $5,000 fine, and 250 hours of community service.

Mendte, who apologized for his conduct, admitted that he accessed Lane's personal email on more than 500 occasions.  He stated that he was motivated by a "flirtatious, unprofessional, and improper" relationship he'd had with Lane.  Lane was present in the courtroom but did not speak on her own behalf.

For the salacious details of this unusual workplace drama, see our earlier posts:

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Employee Embarrasses Employer, Who Fires Employee, Who Sues Employer

Prying Eyes: What is "Private" Becomes Even Fuzzier for Employees Who Snoop

ABA Journal Takes Note of Our Newsworthy News Anchors

TV News Anchors' Soap Opera Has the Makings of a Made-for-TV Drama

The Mendte-Lane Saga Concludes With a Guilty Plea and a Lawsuit

And what, if anything, can be learned from this latest chapter? Here's what I would offer as the Lessons to Be Learned from the Love-Hate Saga of Larry Mendte and Alycia Lane:

1. Anti-fraternization policies may get some good publicity from this case.  The "flirtatious" relationship between the two co-anchors seems to be, according to Mendte, what sparked his bizarre conduct.
2. Be careful not to disregard the claims of the co-anchor who cried wolf.  Despite Lane's prior allegations regarding Mendte's alleged snooping, her employer was not inclined to believe her, probably because she'd previously volunteered for the spotlight by appearing on the Dr. Phil show, and other unusually public conduct.  This goes to show that, when receiving a complaint from an employee, not to carry our own biases and preconceived beliefs into the investigation.  Go figure--she might actually be telling the truth!
3. Privacy is a big deal.  It's a big enough deal that his violation of it landed a very popular local public figure into very hot legal water.  As Mendte is reported to have opined during his sentencing hearing: "When I look back on the story of my life, I can't believe it brought me to this moment. I am ashamed."

MySpace and Employment Law have crossed paths again. This time, they intersect, again, in education law. But this isn’t the first time.

You may remember Stacy Snyder, the "Drunken Pirate,” who, at the time, was a student in the Education program at Millersville State University.   In a moment of poor judgment, Snyder posted a photo of herself in a pirate hat, drinking, captioned "drunken pirate" on her personal MySpace page.  School officials  learned of the photo and refused to give Snyder a teaching credential because they believed the picture promoted underage drinking. 

Alas, another teacher has fallen prey to MySpace.  A federal District Court in Connecticut has upheld the decision of a school board in that State, which voted to not renew a teacher's contract because of content posted on his MySpace profile. The court found that the non-renewal decision did not violate the teacher’s constitutional rights to Free Speech or Free Association. 

A high school teacher, Jeffery Spanierman, apparently created a MySpace profile, which he used to communicate with students.  The discussions concerned a mix of topics, some of which were unrelated to the school.  Of course, Spanierman's venture into the world of social networking soon came to the attention of the school administration.   An administrator viewed the profile and believed it contained inappropriate comments and "peer-like" discussion with students.  Spanierman deleted the profile after these concerns were brought to his attention. 

But the lure of the social networking site proved to strong for Mr. Spanierman to long resist.  Shortly after deleting the original profile, Spanierman created a second one.  After learning of the second profile, Spanierman was placed on an administrative leave.  Ultimately, the school district decided not to renew Spanierman's teaching contract.   Spanierman filed suit against the school district and various individual officials alleging several violations of his constitutional rights.  In particular, Spanierman claimed that his rights of Free Association and Free Speech had been breached.

The District Court rejected Spanierman's arguments. Although the court determined that Spanierman was not acting pursuant to his official duties as a teacher in maintaining the MySpace page, it found that the page's content did not deal with matters of public concern.  The sole exception to this was a short poem on the Iraq war.  But there was no evidence that any administrator retaliated against Spanierman for expressing his views on that conflict in verse.  The Court went on to note that the school district would likely have been able to demonstrate that Spanierman's "speech" would have been sufficiently disruptive so as to outweigh any the First Amendment value it possessed.

The Court also rejected the teacher's free association claim.  MySpace may be a social networking website, but here, there was “no evidence in the present case that MySpace, as an organization, purports to speak out on matters of public concern.”

Off-duty conduct as grounds for termination is a common topic in employment law. It is not uncommon for employers to include "morals clauses" in employment contracts. And social-networking sites are not the only forums in which employees are getting "busted." You may remember the recent scandal involving not the internet, but a local newspaper, which ran unfavorable photographs of the then-president of the community college engaging in off-duty conduct that reflected negatively on his leadership and judgment. Robert Paxton, resigned after the paper published a photograph of him pouring beer into a young woman’s mouth.

Companies will not risk their reputations on drunken pirate escapades or inappropriate MySpace relationships. Few states offer protection under the law for employees' off-duty conduct. Delaware is not one of those states--employers have full authority to determine what actions constitute "bad behavior," and can result in termination. 

FaceBook, MySpace, and other social network sites, have multiple uses. Of course, the traditional idea is that members gather to meet new people and share experiences.  As most recruiting and hiring managers are well aware, these websites can provide substantial insight into the personality and personal lives of job applicants. 

The value in this hiring strategy is subject to debate.  William W. Bowser and I will be debating it ourselves in greater detail tomorrow in our audioconference, Click Here for Lawsuit: Applicant Screening With Google and MySpace.  Employers must balance the need to make crucial hiring decisions with the privacy demands of Gen Y.  The arguments against using the internet's resources as the basis for employment decisions are shrinking, though.  And, if the trends continue, employers who do not utilize the web in hiring may find that they're alone in that decision. 

A survey released yesterday reports that the use of social networking has just begun to get off the ground outside America.  In North America last year, the number of users increased by 9% compared to an increase of 25% worldwide. 

Social networking has seen growth not only in the number of members, but also in the number of ways it has been put to use.  For example, the National Law Journal's article, Social Networking Sites Help Vet Jurors.  The article details how many lawyers now incorporate a Facebook-MySpace background-style check into their jury selections.  The information that is available online about potential and seated jurors can be invaluable in selecting jurors, striking potential jurors, and even in crafting opening and closing arguments that will hit home for the jury-audience.

What is remarkable about this trend is the revelations that often come with the discovery of an individual's FaceBook or MySpace page. Over and over, when social networking is used as a means to find out the "real" personality, behavior, and preferences of others, whether it be a job candidate or a potential juror, the "real" version is drastically different from the version presented to the searching party.