Delaware Employment Law Blog

Employers are struggling to develop effective social-media policies. And for good reason—it can be hard to draft a policy that is intended to address issues that are unfamiliar and that arise from technology that many employers don’t quite understand.  Which may explain why some employers have been making news headlines with their Facebook and Twitter policies.

One of the reasons that employers implement (and should implement) social-media policies is to help mitigate the risk of liability.  When given an unrestricted forum in which to “express” oneself, people often write things that they shouldn’t.  The anonymity of the Internet makes this risk all the more real because things we would never say to another person in conversation become much easier to “say” online. The fact that our online expression comes in the form of the written word further exacerbates the potential problem because what we write online is as permanent as permanent can be.

This “perfect storm” of potential liability came to fruition with the postings of NFL player, Larry Johnson, who, at the time, played for the K.C. Chiefs.  First, Johnson took on Chiefs Head Coach Haley, tweeting about what he perceived to be Haley’s lack of credentials.  If there’s one thing we should know by now about social media, it’s that tweeting bad things about your boss is generally a bad idea.

But, for Johnson, it got worse.  One of his followers engaged Johnson in a series of tweets, heckling him about his comments. The heckler apparently was effective—getting Johnson so agitated that he tweeted back with a gay slur.  As a result, he was suspended and fined $213,000, the amount he would have been paid had he not been sidelined for his inappropriate conduct. 

Johnson was released from his contract with the Chiefs on November 9, making him one of the first professional athletes to be fired for his Twitter activity.  He was later picked up by the Bengals.

The big-picture lesson here is that employers must consider whether they need a social-media policy.  But the real take-away is this: if you have employees who are in the public eye (for whatever reason), they may need to be subject to stricter or at least more specific rules for their social-media activity.  The larger the audience, the greater the potential harm when an employee missteps and conducts himself in a way that does not reflect the organization’s views or culture. 

Hat tip to Rob Radcliff, whose Texas blawg, Smooth Transitions, made my list of 2009 Top 100 employment law blogs.

Thanks to Facebook, a Canadian insurance company has revoked the disability benefits of a woman who had been out of work for more than a year and a half due to depression.  Former IBM employee Nathalie Blanchard, 29, claims that she called her insurance company when her monthly sick-leave checks stopped coming and was told that she was deemed as able to return to work based on what it had found on her Facebook page. 

The alleged smoking-gun evidence was Blanchard’s Facebook page, which Blanchard insists was set as private.  She admits, though, that she had posted photos of herself on holiday at the beach and at a Chippendale’s show.  But, she said, she had gone on trips to exotic destinations and partied it up at local bars only because of doctor’s orders.  Her doctor had advised her to take short getaways to sunny locales to escape her problems.

But, she said, those getaways were no more than band-aids on a far bigger problem. She’s still depressed, she claimed.  “In the moment, I’m happy, but before and after I have the same problems,” she said.  Which is why she’s so confused about why the insurance company has cut off her benefits. 

Follow me on Twitter at @MollyDiBi or read these related posts:

"Unfriend," according to the New Oxford American Dictionary, is the word of the year. According to CNN.com:

"Unfriend" beat out a tech-heavy field that included "netbook," "hashtag" and "sexting" to take the annual honor.

"It has both currency and potential longevity," said Christine Lindberg, a language researcher for Oxford's U.S. dictionary program. "In the online social networking context, its meaning is understood, so its adoption as a modern verb form makes this an interesting choice for Word of the Year."

Oxford defines "unfriend," a verb, thusly: "To remove someone as a 'friend' on a social networking site such as Facebook."

If this doesn't solidify the place of social media in modern culture, I don't know what would. It's just one more reason why employers are best advised to stop running and face the social-media-music. 

See also:

Social Media Is Here to Stay: Time to Start that Workplace Policy

Ah, Facebook in the courtroom. It's a relationship that appears to have a long and tumultuous future ahead.

In Wilgus v. F/V Sirius, Inc., (decision below), the jury returned a verdict for the defense and against the plaintiffs, who alleged personal-injury and wrongful-death claims.  Four days after the verdict was returned, the plaintiff's lawyer received an e-mail from one of the jurors, which stated:

[D]id you know your plaintiff[s] advocated the use of mushroom and week smoking, and binge drinking all over the internet? . . . It['s] really sad what happened but with all the work going into this don['t] you think you should have address[ed] this issue and known such things so they could clean up their acts before court? I'm just trying to help.[]  [If you want more info and insight [I] will help you.

The lawyer filed a notice of juror contact and filed a Motion to Conduct Post-Trial Voir Dire of the juror. The judge had explicitly told the jury "more than once" not to do Internet research about the case or the parties but the e-mail implied that the author may have done just that. 

During the judge's investigation, the judge determined that a post-verdict response to a juror questionnaire stated that one of the plaintiffs "was a party drug [illegible] animal" and that the handwriting on the response was similar to the handwriting on the pre-jury selection survey that the e-mailing juror had completed.

The jury foreperson did not recall any discussion of material from the Internet during deliberations. The foreperson did, however, remember that someone on the jury had wondered aloud whether the plaintiffs had Facebook pages but said that "nothing else came of that."  The judge asked the juror what information the juror had found on the Internet, to which he answered:

After the jury duty was over and the case was decided, I did the research that you said we couldn't do during the case.

He found the information about two of the plaintiffs on Facebook.  He gained access to those plaintiffs' Facebook pages by sending them friend requests, which the plaintiffs apparently accepted.  On their Facebook pages, the juror said that he found pictures that provoked the allegations in his e-mail. 

The juror insisted that he found the pictures "a day or two after . . . it was all over" and that he had not otherwise contacted or communicated with the plaintiffs. He denied that the information he'd learned online had ever been discussed during deliberations.

The court determined that there was no evidence to conclude that the juror discovered the Facebook pictures (or any other information from the Internet) during the trial or deliberations, and denied the plaintiffs' motion for a new trial, finding no evidence that juror misconduct actually occurred.

Wilgus v. FV Sirius, Inc. (D. Me. 2009) Order Denying Motion for New Trial Due to Juror Misconduct

For more on the relationship of social media and the courts, see:

Use Facebook, Get Arrested. Use Twitter, Get Fired.

In Case It's Not Obvious: Don't Text Witnesses During Trial

Michigan's Supreme Court Bans Jury Members from Mid-Trial Twitter Use

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

Discoverability of Facebook Profiles

Searching MySpace and Facebook for Job Applicants and . . . Judges?

Employers Use MySpace for Hiring and, Now, Defending Discrimination Claims

Our seminar today on social media for employers was great. Thanks to everyone who attended (live and online with apologies for the short interruption in audio to those online). As promised, the handout is posted below for downloading.  As is my standard, the handout is not a copy of my slides but, instead, is intended to be a reference for future use and deals with some to the resources and statistics that I touched on but did not go into great detail on. 

There are, though, some noteworthy statistics from the presentation that stood out, so I'll post them later today in a separate post.  Again, thanks for attending and I'm looking forward to hearing about all of the great ways that everyone puts social media to work for their organizations, so keep me posted!

Social Media for Employers: Presentation Handout

A reported 4.1 billion text messages are sent each day in the U.S., according to CITA, the International Association for the Wireless Telecommunications Industry. The popularity of text messaging or "texting" has seen explosive growth in the past few years.  But are employers really in touch with this tool and its potential legal risks? 

One employer has.  Alachua County, Florida, has banned County employees from sending text messages for County business.  The prohibition was announced after County official  became concerned that text messages constituted public records that are subject to a FOIA-type request.  FOIA laws require public entities to produce official records when a proper request is made. 

Textual harassment has gotten quite a bit of press lately, and for good reason.  According to the National Conference of State Legislatures, 46 states, including Delaware, currently have an electronic harassment or "cyberstalking" law. 

The Delaware law provides that a person is guilty of criminal harassment when, with the intent to harass, annoy, or alarm another, the person . . . communicates by telephone. . . or any other form of written or electronic communication in a manner which the person knows is likely to cause annoyance or alarm. 

When an employer learns of a possible hostile environment, it must comply with fairly strict rules relating to how and how quickly to respond.  Textual harassment adds another layer to the process because employers must determine whether any electronic evidence of harassment (or evidence that disproves harassment) exists on computers, laptops, and, now, cell phones.

Employer should consider whether their employees are using work (or personal) phones to send text messages about work during working time.  If so, you are obligated to take active steps to preserve these messages once you have reason to believe there may be potential litigation. If you're not in a position to do that, you may want to consider implementing a "no-texting" rule for all business-related correspondence.

There are more than 300 million Americans are Facebook users. Facebook users who are looking for work are having their profiles searched by the 45% of employers who are hiring as part of their background-search process. The rapid adoption of social media has created a number of potential issues for the employees whose non-working lives are suddenly part of the employment relationship. Employers must keep up with the changing dynamic of the recruiting process, while maintaining the proper balance between too much and not enough information about their employees and potential hires.

Pew Internet & American Life Project’s newest survey, Twitter and Status Updating, highlights the demographic data behind these new challenges.

Social-media users have gotten younger.

In May 2008, the median age for users of Twitter, MySpace, LinkedIn, and Facebook was 32.25 years. That number climbed to 38.75 years old since then. Here are the specifics by site:

• The average Twitter user is 31. That number did not change from 2008.
• The average MySpace user has gotten younger—26 as opposed to 27 in 2008.
• The average LinkedIn user is now 39, down from 40.
• Most interestingly, though, is the continued “graying” of Facebook. The median age is up to 26 from 33.

Let’s Talk About Me. Approximately 19% of all Internet users report that they use Twitter or another service to share updates about themselves or see updates about others. This is an 8% increase from last year.

Twitter Distillation. There is no disputing that Twitter is catching on. The number of unique users per month went from 2 million in December 2008 to more than 17 million in May 2009. But what’s everyone tweeting about, exactly? Those numbers are what’s most surprising.

• Harvard Business School researches determined that the top 10% “of prolific Twitter users accounted for over 90% of tweets.”
• Most Twitter users post just once a day.
• 1 in 5 Twitter users have never posted.

Twitter Diversity.

According to the Pew survey, Twitter users represent a fairly diverse slice of American society. The only significant demographic difference is age. During the past 9 months, Twitter users in the 18-44 group increased from 19% to 37%. Users age 45 and older have been more reluctant to jump aboard the Twitter train.

• Men and women tweet almost equally. 17% of all adult males and 21% of females who are online are also Twitter users.
• 19% of white (non-Hispanic), 26% of African-American, and 18% of Hispanic adult Internet users tweet.
• Education level seems to have a similarly low impact. 18% of adult Internet users with less than a high school degree tweet, compared to 21% of those with a college degree.

Social networking is a phenomenon that has taken over with shocking speed. The growth in popularity of sites like Facebook and microblogging application, Twitter, has exploded.  (Facebook reported that it has 300 million users as of last month!)  The problem with anything that grows so fast, though, is the growing pains that come with it. 

For social media, there is a clear gap between the law and the technology, as employers battle to come to terms with social-media use in the workplace and companies worry about trademark violation and improper disclosures made by employees whose online voices have the potential of reaching an unlimited number of listeners.

In short, there are numerous ways that a Facebook posting or Twitter tweet can land you in hot water.  Here are a few that social-media devotees should consider before their next online excursion.

Use Facebook, Get Arrested

I bet you didn't think that Facebook could land you in jail, right? Well, here's a story about a woman who was arrested for "poking" a friend on Facebook. [When you "poke" a friend's page, the friend is notified on his or her home page. You can poke friends to say "hello."  If you poke a user who normally does not have access to your profile, they will be able to temporarily see your Basic Info, Work Info, and Education Info.]  In this case, Shannon D. Jackson, 25, of Hendersonville, TN, was arrested for poking a Facebook friend because the woman who was poked (the "pokee"?) had filed a legal order of protection against Jackson (the "poker"?).  The order prohibited Jackson from any kind of communication, apparently including online poking.

Use Twitter, Get Fired

Another way to get in trouble online (although not arrested, necessarily), is to tweet negatively about your employer, particularly your boss. A quick Twitter search turned up lots of great examples, making me think that employers should consider doing the same to see just what exactly their employees are saying about them--and from work, no less!  Here's just one of the many:

(For more salacious tweets showing less than stellar judgment by tweeting workers, see this post on ResumeBear.com).

Other Posts About Social Media and the Workplace:

Employers Make Headlines With Facebook and Twitter Policies

Jury Verdict Against Employer Who Accessed Employee's MySpace Page

Hopeful New Lawyers Will Be Subject to a Social-Media Review

In September, Facebook reported that it’s user population had reached an astounding 300 million worldwide.  But employers are withstanding peer pressure, apparently.  A new survey by Robert Half Technology found that 54 percent of employers polled reported that they “do not allow employees to visit social networking sites for any reason while at work.”

An additional 19 percent said that their organization allows the use of social networking sites for business purposes only, while some 26 percent said their workers could use such sites for personal use while on the job.

“Using social networking sites may divert employees’ attention away from more pressing priorities, so it’s understandable that some companies limit access,” said Dave Willmer, executive director of Robert Half Technology, in a press release about the study. “For some professions, however, these sites can be leveraged as effective business tools, which may be why about one in five companies allows their use for work-related purposes.”

So how do these numbers figure into the reality that many companies are learning that social media tools like Facebook, Twitter, blogs, and wikis also can be used to engage employees in discussions, foster conversations between teams, and share knowledge that previously was accessible only to a limited number of users.  And don’t forget the potential sales implications of social media. Dell Inc. recently reported revenues of $1 million from its Twitter accounts.

While there can be great benefits to using social media in the workplace, there are also substantial risks if you don’t have a clear policy in place. When you sit down to begin drafting your social media policy, you should consider whether you will permit employees to access sites like Facebook and Twitter during working hours. Consider the issue honestly, considering the many advantages that many of these sites can give your organization while still maintaining a realistic perspective about the time-wasting that inevitably occurs when employees are tweeting and posting at work.

45% of employers now report to using social media to screen job candidates, according to a survey of more than 2,000 HR professionals commissioned by CareerBuilder.com.  11% reported that they expected to incorporate online tactics in their hiring practices in the next year. 

35% of those currently using social media reported that they’d rejected a candidate based on what they’d found in their online search.  And what exactly is it that turns off employers and causes them to reject a candidate?  Here’s what the biggest “no-nos” are, with the percent of employers who reported having turned a candidate based on each:

• 53% provocative pictures or info
• 44% drinking or drugs
• 35% bad-mouthed previous employers, co-workers, or clients
• 29% showed poor communication skills
• 26% made discriminatory comments
• 24% lied about qualifications
• 20% shared confidential information from previous employer
• 14% sent a message using an emoticon such as a smiley face
• 16% used text language such as “GR8”

Employers who are performing or who are considering performing online searches of potential employees should review these items as possible criteria.  Which of these items should be considered?  Which are not relevant?  These are two questions employers should answer before engaging in their Internet searches.

The Washington Post reported on a Congressional Quarterly editor, Brian Nutting, who questioned his employer in a very confrontational email on the recent layoffs of 44 staff members.

Not only did he send the email to his bosses, presumably the decisionmakers, but he also copied “the Newsroom” – which presumably included a whole lot of people. One of the recipients leaked the memo to FishBowlDC, which published it in full.

The company said that Nutting's email had embarrassed it, and fired him for “insubordination.” In the Post article, he claimed that he was a Luddite, and did not anticipate his memo would ever go beyond the newsroom.

The lesson to be learned here, as articulated by Heather Armstrong of dooce.com (whose termination after her blogging on work-related topics coined the term “dooced”), "BE YE NOT STUPID."

Do not address matters of a controversial or potentially embarrassing nature to your employer on a social networking site, blog, or to a large number of recipients, any one of whom could launch the information into the public domain with the click of a button. This type of missive need only be sent to the individuals who need to address it. Better yet, this would be a good instance to go the old-fashioned route and HAND DELIVER the note.

 For more on the topic of e-mail etiquette, see:

ALL-CAPS EMAILS and Other Workplace Annoyances

As of mid-September, there are 300 million Facebook users worldwide. The announcement came just two months after the company reached 250 million users in July. For those of us not inclined to do the math, at the current rate, Facebook is growing to the tune of 25 million new users per month.

Faced with these statistics, it’s hard to deny the reality—social media is here to stay. So it makes sense that more and more employers are (finally) turning their attention to the many implications that sites like Facebook, LinkedIn, and Twitter can have on businesses. Taking a proactive approach makes obvious sense to many of us, especially considering some of the better known blunders that have made their way to the mainstream media.

Despite their good intentions, though, many employers have gotten stalled. They recognize the potential value and potential risks inherently associated with social-media technology. But when they sit down to put pen to paper, they can’t seem to get started. So, since the hardest part is figuring out where to begin, I’m going to provide a quick checklist of fundamentals. Think about these first and the policy will be far easier to create.

What Is the Purpose?

First, what is the purpose of the policy. Is your focus to prevent potential liability or are you more interested in harnessing the power of the web through the voice of your loyal employees?

What Technologies Are Covered?

Second, what technologies will your policy address? Do you have any internal social-networking sites or blogs? If so, will they be covered? Will different rules apply to employee posts on your internal wiki than to employee posts on a personal Facebook page?

In addition to purely internal and purely external sites, there is a third category to consider, as well—public content posted on behalf of the organization. This blog is an example. I am posting on my firm’s nickel but, with any luck, I’m posting in the hopes that someone from outside the firm actually reads it.

Decide which of the three will be addressed in your policy and then identify the specific technologies that will be covered. If the decision makers aren’t familiar with the technologies on a basic level, this is the time for some education in Web 2.0.

Who Is Covered by the Policy?

Third, who will be covered by the policy? All employees? Will some employees be subject to more expansive restrictions? For example, should employees in R & D be subject to different obligations than those in customer service? And what about managers and supervisors? They should be given a larger share of responsibility not only for their own online activities but also for communicating and enforcing the online presence of the members of their respective teams.

I recently reported that a staggering 45% of employers use social-media sites, like Facebook and LinkedIn, to research job applicants. I do not oppose this trend, provided there are safeguards in place to prevent unfairness and discrimination in the hiring process.

There are some opponents to the practice, though, who claim that it could give rise to a claim of invasion of privacy brought by the applicant. I disagree.

There cannot be a viable claim of invasion of privacy unless the plaintiff had a reasonable expectation of privacy in the information that allegedly was “invaded.” In the world of the internet, once it’s online, it’s no longer private. This is especially true when the plaintiff himself was responsible for posting the so-called “private” information on the world wide web.

Some scholars have argued that there should be a claim where the individual consented to share the information only to a limited extent and the “invader” exceeded the scope of that consent. This argument has been limited, for the most part, to academics and has not been well received by the courts. A recent decision from a California court of appeal reinforces the traditional notion that, once posted online, information is in the public domain. 

In Moreno v. Hanford Sentinel, Inc., the plaintiff-appellant sued for invasion of privacy and intentional infliction of emotional distress when an article she’d posted on her MySpace page was submitted to a newspaper for republication. The appellate court affirmed the trial court’s dismissal of the privacy claim and held that, “once posted on myspace.com, this article was available to anyone with internet access.”

The plaintiff, Cynthia Moreno, posted “An ode to Coalinga” and posted it in her online journal. The article was a rant about her dislike of her hometown, Coalinga, California. Moreno removed the article from her MySpace page after just six days but, one day later, learned that the principal of Coalinga High School had submitted it to the local newspaper. The article was posted in the Letters to the Editor section of the paper and was attributed to Moreno. The community reacted with death threats to Moreno’s family, who later moved and closed their 20-year-old family business.

The court’s decision is an important one. It states that the fact that Moreno removed the article from her online journal after just six days was “of no consequence” to the determination that no privacy violation had occurred. Instead, by posting it on a publicly accessible web page, she opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.

Previous, related posts:

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.

A Florida state judge recently dismissed with prejudice a lawsuit alleging civil fraud involving the sale of a condo tower. During the trial, the plaintiff sent a text message to his employee, while the employee was testifying on the witness stand in that case. The texter, Yizhak Toledano, CEO of the company that had filed suit, texted the company’s CFO while the attorneys were in sidebar. Not only was the case dismissed, but the plaintiff, thanks to the CEO’s text message, was ordered to pay the defendant’s attorneys’ fees and costs.  

It seems painfully obvious that texting your witness while he’s testifying is a very bad idea. What makes it more painful is that the plaintiff had improperly texted a witness during deposition just two months earlier, resulting in a reprimand from the magistrate judge.

[H/T Evidence Prof Blog]

Other Posts on the Intersection of Technology and the Law

Ethical Implications of "Friend-ing" a Witness on Facebook

Hopeful New Lawyers Will Be Subject to a Social-Media Review

Delaware's Indian River School District Bans Cell Phones

Michigan's Supreme Court Bans Jury Members from Mid-Trial Twitter Use

More employers are addressing their employees’ use of social-media sites, such as Facebook, through formal workplace policies. Here are just a few of the employers whose policies have made headlines in the past several weeks:

Ohio state troopers are now prohibited from "posting pictures of themselves or others in uniform and from using the patrol's 'flying wheel' insignia on social-networking sites without approval." As Brian Hall reported, the new rule for uniformed employees of the Ohio State Highway Patrol came to be as a result of a female trooper who posted an “inappropriate” picture of herself and another trooper on her MySpace page. She was not wearing a uniform in the picture but her site did identify her as a member of the Highway Patrol.  The poster apparently did not realize that her site was viewable by the public. 

Takeaway: Policies should include education for employees to explain how to set effective privacy settings.

The NFL implemented a somewhat unpopular policy limiting players’ and coaches use of Twitter at game time. The NFL’s new guidelines provide that its members can use social-media applications until 90 minutes before each the start of a game and have to wait until traditional media interviews are finished before they resume posting personal messages. The policy was initiated shortly after media-favorite, Bengal’s player Chad Ochocinco announced that he would tweet from the sidelines.  When that appeared to be threatened by the pending policy, he said he would have someone else tweet for him at his signal. The NFL wrote a line into the policy prohibiting players from having someone else tweet on their behalf. At first, it was reported that Ochocinco would delete his Twitter account but, not one to be called a quitter, he announced this week that he’s found a “loophole” in the NFL’s policy and is planning a “surprise” at the team’s season opener on Sunday. This summer, the San Diego Chargers reportedly fined cornerback Antonio Cromartie $2,500 for using Twitter to complain about the food served at the team's training camp. 

Driven by concerns about potentially lost business, the League also is attempting to restrict how fans can use social-media applications like Facebook and Twitter to talk about professional football. Under the new rules, the NFL says fans are encouraged to circulate messages about teams and players, but cannot post play-by-play accounts of actual games. 

Takeaway:  Policies that are overly broad are likely to be ignored from the start, making enforcement very difficult. If a policy is obviously ineffective, don’t bother.

The Pentagon also has some concerns about the potential impacts of Twitter and similar social media.  In August, Deputy Defense Secretary William Lynn commissioned a report on the pros and cons of social media.  The Pentagon, he said, will review the report and, by the end of September, issue an official policy.  The Marines banned access to Facebook from its computers, citing security concerns.  Marines can access Facebook and Twitter from their personal computers and at internet cafes, though.  The order banning access states: "These internet sites in general are a proven haven for malicious actors and content -- and are particularly high risk due to information exposure, user-generated content and targeting by adversaries."

For more on the love-hate relationship of employers and Facebook, see these earlier posts:

New Statistics on Employers Using Social Media to Research Applicants

Warnings Against LinkedIn Recommendations: Justified or Propaganda?

How to Become an Employer of Last Resort: Require Applicants' Facebook Passwords

Facebook and YouTube Make Employees More Productive. Really??

CareerBuilder's most recent survey has interesting statistics on the number of employers who report that they currently use social-media sites, such as Facebook and LinkedIn, to research potential job candidates. 22% reported that they used social media in the 2008 survey, which more than doubled this year, up to 45%.  An additional 11% reported that they planned to start using social media as a background check tool.  That would push the number far past the half-way mark. 

Here's a quick visual.

Last year . .  .

And, this year. . .

I think that the increase is inevitable--employers will continue to utilize these sites for their recruiting and hiring processes more and more as more and more HR and recruiting professionals become accustomed to using the sites.

Want more?  Here are some earlier posts on the topic of social media in the workplace:

Facebook Set to Overhaul Its Privacy Settings

Job applicants required to submit Facebook passwords for background checks

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

Facebook and YouTube Make Employees More Productive. Really??

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.

Continue reading "Jury Verdict Against Employer Who Accessed Employee's MySpace Page" »

Applicants' social-networking sites may now be reviewed as part of the Character and Fitness process for applicants to the Florida State Bar Association.  According to the ABA Journal, the Florida Board of Bar Examiners voted to review applicants' social-media activity on a case-by-case basis. The board will review sites like MySpace and Facebook only for candidates who have a demonstrated history of troubling conduct.  

What's my take on this news?

1.  It was inevitable.  It was only a matter of time before it happened.  The President required applicants to disclose their online activities, so why wouldn't the state bar associations?

2.  It's not a terrible idea.  If the state intends to have a truly effective screening process, the more information gathered, the better.

3.  I'm not crazy about the idea of only looking at the sites of "problem" candidates.  Having not given it too much thought, my first inclination is to argue for a random selection process instead of selecting only candidates who have a history of issues.

4.  I am also inclined to disagree with the decision not to make an up-front request to all applicants for access.  The bar association says that "if applicants are required to provide access to their social websites, they are likely to delete any derogatory material before staff has the opportunity to review it."  As I've previously argued, it's the ones who are warned in advance and still don't remove potentially offensive material that we should really be concerned about.  I think this is a more effective checks and balances on exactly what conduct or behavior will count "against" an applicant (for bar admission or employment).

Related posts:

Job applicants required to submit Facebook passwords for background checks

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

How to Become an Employer of Last Resort: Require Applicants' Facebook Passwords

There is much hype about the power of social media. A quick search of the Internet will generate countless links to countless websites where self-named social-media gurus profess the benefits of engaging in various Web 2.0 media, such as blogs and microblogs like Twitter.  Building business, getting referrals, finding new clients, and getting positive publicity are all possibilities, so they say.

But an article on ABA Journal questions the value of legal blogs at all.  One blogger conducted an “unscientific survey” and concluded that legal blogs are very short lived.  Several of the blogs he reviewed had stopped posting after just a few months. Why the sudden death for so many of my potential blogging peers?  Too much work, too little return, says the article.

Delaware's Indian River School District has decided to prohibit students from having cell phones, pagers, and other communication devices both at school and on school buses.   According to the Indian River's School Board President Charles Birely, the District took this step because, cell phones are a distraction  that "have no place in the classroom.” 

Many public school districts have policies that restrict the possession and use of cell phones and similar devices at school. Such policies, of course, may give rise to legal liability when school officials seize or search a student's phone.

Twitter continues to gain popularity and I've jumped on the bandwagon.  Here are my "tweets" from this week, grouped into rough categories by topic.

Social Media

Video HowCreate an Account in LinkedIn (via Professionally Speaking) http://bit.ly/R130x Now you've got no excuse to avoid #social #networking

Using Twitter as a teaching tool (via #elearning future) http://bit.ly/10rdhc

RT @mashable High School Admins Coerce Cheerleader for Facebook Password http://bit.ly/1O2xWf (and then disclose the info on her pers. pg.)

RT @fyiscreening4 Tips On How To Use Social Networks For Employee Screening (from N.Y. Law Journal)  http://bit.ly/j3zcv

RT @Twitter_Tips Top 10 Rules of Twitter Etiquette: http://ow.ly/iekG --Share this guide: http://bit.ly/44Vft3

RT @LissaLawyer: AmLaw Daily asks whether the Future is "Oh So Social" http://bit.ly/LmVpV

RT @HRSocialMedia: White House using LinkedIn to get comments from small business on health care reform http://tinyurl.com/lcnexv

Canada's #privacy commissioner gives #Facebook a failing grade http://bit.ly/5VCoh (RT: @cybercourt)

RT @mashable Top 5 Funniest Fake Facebook Pages http://bit.ly/bkPDV. Slate's fake Obama #Facebook page is a riot

Legal

FTC has postponed (again) the start of its "Red-Flag Rule" until November due to ?s re: how to comply. http://bit.ly/drImZ

Thanks to @MelanieMcClure for mention of my "anti-harassment policy tip sheet" http://tinyurl.com/mhh5hn

RT @Eric_B_Meyer: Philly Inquirer article rips Sen. Specter for wavering on #EFCA.

In Philly, $10m #verdict in police officers' race-bias suit cut to $30k max per Title VII cap http://bit.ly/KJJoH

Presentations and Public Speaking

Delaware gets its own #Ignite night! (via The News Journal) YCST E-law did #Pecha Kucha back in April w/great response. http://bit.ly/OLi09

RT @pptninja: 31 Flavors of PowerPoint - Part I http://bit.ly/Dvdxb #ppt (Great post re: diff. presentation styles needed diff. settings

Work-Life Balance

WSJ's The Juggle talks about how we handle pressure differently at home vs. at work. Is there anyone who doesn't? http://bit.ly/xaNwW

RT @DrDavidBallardRT @jessicapeterson Employees financial problems cost employers $4.5 billion annually (BusinessWeek) http://bit.ly/TiM3b

The Paperless Office

RT @DisabilityTips 6 Myths of Going "Paperless" | Colorado Social Security Law http://bit.ly/nYAJV

Why are fed courts so opposed to #technology in the #courtroom? NY lawyers want the rules changed. Agreed. http://bit.ly/11WvzD

Great #acrobat article re: What You Can Accomplish With Adobe Acrobat Forms http://is.gd/1NqkM RT @acroboy: RT @wikiatech.

Management & Leadership

Here's a real shocker from @nytimes: Corner Office: No Doubts: Women Are Better Managers http://bit.ly/3eFOVv (via @wbowser)

Great book on management: Not Everyone Gets a Trophy by Bruce Telgan. Supposed to be re: Gen Y but is applicable to all http://bit.ly/EB3mj

RT @hrmagazine: PricewaterhouseCoopers offers program to develop 1st-yr college students. http://bit.ly/M9H7s Great idea for #GenY!

Employers can now efficiently use Twitter to interact with consumers and manage the branding of their companies. Large businesses like Starbucks, JetBlue and Whole Foods are already using CoTweet.

CoTweet is a platform where companies can easily manage several Twitter accounts from a single user login. With its unique features, employers can simultaneously accomplish two goals: keeping employees engaged and responding to customers’ questions and concerns.

CoTweet enables employers to give account access to multiple employees, who then can write on behalf of the company. Employees can indicate to other account members when they are “on-duty” and will receive email alerts when they need to take action on a Twitter account that they are responsible for. While multiple employees can post to one account, they can monitor actions in all accounts at real-time, and thus, prevent duplicate or conflicting actions.

In addition to responding faster to consumer concerns, companies create a more personal appeal. Each employee is identified with a “CoTag,” which, like an email signature, automatically appends to his/her posts. Another marketing perk is “Tweet Scheduling,” which allows companies to post entries at a scheduled time in the future—a useful tool when releasing new products or promotions.

CoTweet is a new easy way for companies to use social networks as a business venue.

Read more posts on the topic on social networks like Twitter and Facebook.

*This post was written by guest blogger, Felicia Yen.  Felicia is a 2L at the University of Pennsylvania Law School.  She is one of the amazing students participating in this year's summer-associate program at Young Conaway Stargatt & Taylor, LLP. Thanks for your hard work, Felicia!

Thanks to fellow employment-law blogger, Dan Schwartz, of the CT Employment Law Blog, convinced me to give Twitter a try. So I tossed my hat into the Twitter ring and have been pretty happy with the results.  It’s a super-fast way to access all the news you want in real time.  To give you an idea of what you can expect on Twitter, here are some of my “tweets” from the past week or so.

Technology & Public Speaking

• Great (and practical) post on redaction tips for #Acrobat 9 users by Rick B. at Acrobat for #Legal Pros http://is.gd/1CONR
• More #visual #thinking--from all things wonderful about #presentations and public #speaking, Nancy #Duarte http://bit.ly/WYflo http://bi ...
• By Nancy Duarte, fearless leader of all good things re: #presentations and public #speaking, video on #visual #thinking http://bit.ly/WYflo
• RT @presentationzen: Video of Kermit on visual thinking. http://post.ly/1ULu Visual thinking = how to be understood, no matter the audience

Social Media and Networking

• AmLaw Daily asks, "Will we ever get tired of talking about #work-life balance?" http://is.gd/1El5S
• Business Insurance: #Employers are wise to understand the many implications (good and bad) of #social #media http://is.gd/1FLFQ
• PR 2.0 has a great discussion on the long- and short-term impact #socialmedia can have on your reputation http://is.gd/1FZ6V
• ZDNet reports that 71% of IT dept's block #employees' use of social media http://bit.ly/oqaWB #privacy #workplace
• RT @mashable YouTube Insight: Detailed Stats for Your YouTube Videos http://bit.ly/JGCml (A "must" for #employers who #recruit w/YouTube)
• 6 Online Networking Mistakes to Avoid http://bit.ly/lov3d
• RT @mashable Twitter Launches a Twitter 101 Guide for Business http://bit.ly/DBVng Now's the time to learn! Why delay?

Dress & Attire

• WSJ Style: Save the swim trunks for vacation; they're not to be worn at the office pool party http://is.gd/1FV4d
• Lady Gaga wears Kermit the Frog dress. http://tr.im/tl7e Because this would be the ultimate dress for the firm's annual bbq

HR

• RT @SHRMPA RT @nevinesq More Workers Want to Stay Working http://bit.ly/pOuR5 Current #workforce doesn't want to #retire
• Cnn.com/living: Just for #HR pros & hiring managers: 43 weird things said in job interviews - http://bit.ly/US5xq #cnn
• RT @HRHero: Cussing at work: How rude and crude is your workplace? http://tinyurl.com/l4t8ta [An age-old #HR question, really]

Want to give it a try? Follow me at www.twitter.com/MollyDiBi

LinkedIn, a popular social networking site, enables users to “recommend” other users with whom they’ve worked or done business. Not a bad idea, really. In theory, a recommendation could improve the legitimacy or credibility of a user, even making the user more desirable to potential clients or employers—the basic premise of the professional-networking site.  So why, then, have commentators suddenly taken up the issue in protest? Even the ABA Journal warns against recommendations, suggesting that employers are best advised to avoid them altogether. 

I am of the opinion that this new story is nothing more than propaganda.  I don’t think there’s much to the theory at all. But, to be fair, let’s look at it more closely.

What’s the potential harm, according to those who caution against permitting managers to recommend an employee?

Well, they say that a positive recommendation could be detrimental to the employer in a later lawsuit brought by the recipient of the recommendation.  If the employer claimed to terminate an employee due to performance, a positive recommendation would seem to contradict that claim.  The contradiction could act as pretext evidence, tending to show that the employer’s proffered reason (poor performance), was a mere pretext for a discriminatory reason for the termination. 

Sounds legitimate to me.  Indeed, if a supervisor tells an employee how wonderful he or she is all the while thinking terrible things about the quality of the employee’s work product or habits, then there is likely going to be a contradiction between the reason the supervisor tells the employee he or she is being fired and the real reason.  Or not.  Maybe the supervisor, who is too chicken to be upfront and honest with the employee requesting a recommendation to just come out and say, “You know, Bob, I’m going to have to pass.  I don’t think I could write a recommendation for you because you haven’t been a very good performer while you’ve worked for me.” 

Instead, the supervisor chickens out and says, “Uh, sure, Bob.  I’d be glad to write a recommendation for you.  Right after I get back from lunch.”  He then proceeds to write a “recommendation” that is pretty bland, entirely generic, and, to most people, having nothing to do with the specific individual.  Good for the wimpy supervisor!  If it’s a “positive” recommendation that is purely vanilla standard issue, then no harm done.  

But what about the linguist supervisor who loves to play wordsmith any chance he gets and who pens a lovely recommendation filled with gloriously specific adjectives and adverbs?  Then it may be a little trickier, right? Well, that depends. Does the junior Shakespeare write the same wordy recommendations for everyone or did he reserve his poetry for this one individual? 

Even if the employee who later sues is the only lucky recipient of this supervisor’s digital words of praise, the realities of modern-day life—including our online lives—are not simply ignored by the courts.  Just because the law has not caught up with the constantly changing dynamics of social media doesn’t mean that it has turned a blind eye to it, either.  The courts and juries recognize that the fact that you “friend” someone on Facebook or “recommend” someone on LinkedIn is a far cry to an actual off-line friendship or analogue reference letter.  

Don’t believe me? Just ask the court!

Eastern District of Pennsylvania, which addressed the plaintiff’s suggestion that some of the individual defendants’ online connections with one another constituted evidence that they were acting in concert to solicit proxies and vote shares to gain control of the company in violation of the Exchange Act. Here’s how the court responded to this “evidence:

For purposes of this litigation, the Court assigns no significance to the Facebook "friends" reference.  Facebook reportedly has more than 200 million active users, and the average user has 120 "friends" on the site. The fastest growing demographic is those [users] 35 years old and older. Facebook Pressroom. (citation omitted).  Regardless of what Facebook's apparent popularity or usefulness may say about the nature of 21st century communications and relationships, the site's designers' selections of icons or labels offer no substance to this dispute. Indeed, the Court notes that electronically connected "friends" are not among the litany of relationships targeted by the Exchange Act or the regulations issued pursuant to the statute. Indeed, "friendships" on Facebook may be as fleeting as the flick of a delete button.

Quigley Corp. v. Karkus, No. 09-1725, 2009 U.S. Dist. LEXIS 41296, at *16, n.3 (E.D. Pa. May 19, 2009).

Exactly!  The court’s decision merely recognizes what everyone already knows—“relationships” are not evidenced by a simple online recommendation made on a one-time basis, especially if solicited by its recipient. So, to the critics out there, relax. The real reason employers should be nervous about managers who write recommendations about employees is that those things take time to create and employers would be wise to make sure the recommendation-writing isn’t consuming an inordinate amount of time better spent supervising. 

Want more? Try these related posts:

Facebook Set to Overhaul Its Privacy Settings

Job applicants required to submit Facebook passwords for background checks

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

Facebook and YouTube Make Employees More Productive. Really??

Facebook’s popularity is spreading to an older audience. According to a new study, the largest group of Facebook users are now 35-54, accounting for 28% of all U.S. users.  24-32 year users follow closely behind, representing 25.2% of users. 

More interesting is how quickly older users have taken interest in Facebook.  The surge in interest has been rapid.  Since January, new users in the 35-54 age group joined in on the Facebook trend, increasing 190%.  More astounding was the growth in new users age 55+—that population grew 590%!!  By contrast, the youngest group (18-24), increased only by 4.8% since January. 

Also interesting was the decrease in the 18-24 group’s overall Facebook presence.  They now account for only 25.1% of users, which is a decrease of 40.8%  since January.

See recent related posts:

Facebook Set to Overhaul Its Privacy Settings

Job applicants required to submit Facebook passwords for background checks

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

Facebook and YouTube Make Employees More Productive. Really??

Employees are social networking in droves. And their online activities can have a direct impact on their employers.  So why don't more employers have social-networking policies to address the many potential issues that can arise in cyberspace?  If your organization hasn't yet adopted and implemented an effective social-networking policy, you may want to consider why this is before trying to tackle the problem internally.

A Social-What-Working Policy?

I'll boldly venture that the number one thing holding back organizations from working towards a social-networking is good old-fashioned ignorance.  At a seminar for HR professionals in 2005, we polled the audience and learned that approximately 5 of the more than 100 attendees actually knew what a blog was.  I'm sorry to say that most of my clients still aren't familiar with the world of blogs or social-networking sites like FaceBook and LinkedIn.  If you don't know what it is, you're not likely to feel a pressing need to regulate it in great detail.  This is especially true when ignorance of the subject matter is directly linked to ignorance of the potential impact (positive and negative) of the medium.

Avoidance By Committee

One sure-fire way to avoid having to implement any kind of policy is to require the policy to first pass the approval of a committee. Hiring Committee. Technology Committee.  Glee Club Committee. It's irrelevant which one the policy must get through--so long as it's a committee, it probably won't go anywhere at all. A committee guarantees that there will be someone who doesn't "get it"--even if most members actually are familiar with social networking. 

If We Ignore It. . .

No, it won't go away.  But lots of people surely hope this is the case.  Here are some comments you're likely to hear if this problem is preventing the implementation of an effective policy:  "Technology is changing so rapidly. If we wait it out, it will work itself out;". or "By the time we get a policy drafted, the technology will already have changed and our policy will be outdated."  Oh come on, now!  Intelligent professionals certainly can draft a policy that is grounded in principles and values that are deeply ingrained in the organization's culture and not, therefore, likely to change any time soon. 

Put your thinking caps on, soldiers!  You can do it! 

Stories of jurors tweeting from the jury box have been popping up around the web.  So it was just a matter of time before judges put limits on juror's electronic activity during trial.  The Michigan Supreme Court has taken the lead by banning jurors from using electronic communication devices during trial. 

As of September 1, Michigan judges "will instruct jurors not to use any handheld device, such as iPhones or Blackberrys, while in the jury box or during deliberations." Law.com reports that the new rule prohibits all electronic communications during trial.

It seems inevitable that similar rules will follow.  Courts will have to institute these rules if there is to be any chance of preventing jurors from obtaining prohibited information while performing jury duty.

Twitter in the courtroom has caused a lot of controversy. Former Pennsylvania legislator, Vince Fumo, is saying it caused more than that. He’s asked the judge who presided over his criminal trial, which ended in a multiple-count conviction, to overturn the jury’s findings based, in part, on a juror’s postings on Twitter and Facebook during the trial. Fumo requested a new trial, alleging juror bias based on their knowledge of information not in evidence but learned during the case through various media sources, reports Philly.com.

Privacy settings in Facebook have been the topic of several posts. Part of the problem has been that users have only one choice--you can accept a friend request. . . or not.  If your college roommate sends you a friend request, you are likely to accept it.  You've got nothing to hide, right?  But then you get a friend request from your boss. Or your former professor.  Or your mom.  It's likely that there just may be things on your Facebook page that should never be seen by any of these individuals.  Facebook is set to change this. 

According to the NYT blog, Bits, Facebook plans to overhaul its privacy controls so that users can choose to share only parts of their profiles with designated "friends."  Like Twitter, Facebook's new privacy settings would allow users to share updates only with those they designate or with the public at large.  The settings themselves wouldn't change. But users will be able to apply different settings for different users. 

This will be a major improvement for users who want to separate their personal and professional lives and even subdivide different aspects of their personal lives.  Users can set up feeds for "family," "poker buddies," and "parents of Johnny's friends."  The pictures you post following Friday night's card game won't make its way to your brother-in-law or to your kid's friends' parents. And you can dish about the dress Aunt Moira wore to Suzie's wedding last month without losing credibility with your poker friends.

And, in the employment world, it means that you can post about how bored you are at work without worrying that your boss (whose Friend request you felt compelled to accept), will see it.

Although Facebook hasn't announced when its new privacy settings will be available for all users--currently the settings are being beta tested by 40,000 users.

If you're wondering what could be so bad about sharing all updates with all of your Facebook friends, you should take a look at these previous posts:

Job applicants required to submit Facebook passwords for background checks

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

MySpace Post Results in Termination of Nursing Student

Potential employees will no longer be asked to submit their Facebook and MySpace passwords as part of a "background check," said a spokeswoman for Bozeman, MT. This about-face on its hiring policy came less than a week after news of the new policy ignited a firestorm of criticism.  The town initially defended its position--claiming that it had a duty to be as thorough as possible in investigating potential job applicants. As one may well imagine, the policy wasn't very popular.  (In fact, one poll reported that 98% of residents felt it was an invasion of privacy).

Without restating the obvious, this policy had a lot of serious problems. There's the possibility that the request would have constituted a violation of privacy under the First, Fourth, and Fifteenth Amendments--remember,this is a government employer. 

But the more immediate issue is the limitations this policy would impose on the potential applicant pool. Candidates who value personal privacy and who have a Facebook, MySpace, or similar account, likely wouldn't apply.  This means that that they would likely exclude almost all Gen Y and most Gen X candidates because this segment of the population places privacy at a premium and values their online networks.

And who would they get as applicants? Well, only individuals over 32, in the first instance.  And, of those, only individuals who would either lie and say they didn't have any online profile or individuals who have a "I-do-what-I'm-told-regardless" mentality--the same type of mentality that enabled Hitler to become the leader of an entire nation. And,don't forget that, by turning over their password to their Facebook account, the individual would be in violation of Facebook's terms of service--so you'd end up with a bunch of rule-breakers. Not to mention that turning over a personal password for anything to anyone is just a bad idea indicative of someone with poor judgment (who's to say that some rogue HR employee wouldn't commit some heinous act like blocking out the original owner or changing or deleting the individual's profile--Identity Theft 101 says this is a preventable problem).  Oh, and maybe some individuals who are just so desperate for employment of any kind that they'd be willing to forgo their personal autonomy--a characteristic certain to last for a very brief period, especially once employment had been secured. 

So, in all, they'd likely end up with an entire workforce of people who either can't or prefer not to think for themselves, have poor judgment, or who would be nearly impossible to retain. What a result.

In the end, the market would eliminate this job requirement--Bozeman would become an employer of last resort. But I'm glad to hear that public outcry stepped in and corrected it before the market had a chance to adapt.

See more posts on the role of Facebook, MySpace, and Twitter in the workplace.

Facebook postings are powerful things.  We've seen them get their authors fired from their jobs, be used in legal proceedings, and, recently, land judges in hot water. The Third Circuit Court of Appeals, which is the federal appellate court for Delaware, Pennsylvania, New Jersey, and the Virgin Islands, is set to rule in a different type of social-networking legal matter.  The plaintiff in the case is a middle-school student in the Blue Mountain School district in Schuykill County, Pennsylvania.  She was suspended when she created a fake MySpace profile for her principal, using a fake name but his real photograph, claiming that he was a pedophile and sex addict.  The profile was riddled with sexual vulgarities. The student created the profile at home after school.

At issue in the case is whether, and to what extent, the school can discipline students for out-of-school conduct that disrupts or otherwise affects the school and educational process. Federal appellate court judge, D. Michael Fisher, cautioned the school district about the possible impact the case could have if the court were to rule in its favor, saying, "Do we want our school districts to become Internet police?"

The question of how far a school can and should go outside the boundaries of the school yard is paralleled by the debate about employers' monitoring of employees' off-duty conduct.  How far is too far?  And, once you start, do you have a duty to continue to keep tabs of students' or employees' online affairs?  It's a question that is far from settled but front and center in this rapidly developing area of the law.

Recent related posts:

Job applicants required to submit Facebook passwords for background checks

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

MySpace Post Results in Termination of Nursing Student

Applicants with social networking profiles on sites like Facebook and MySpace had better do a bit of self-censorship if they hope to get a job with one city government in Montana. 

All applicants for employment in Bozeman City, Montana are asked to submit a list of all "current personal or business websites, web pages, or memberships on any Internet-based chat rooms, social clubs or forums, to include but not limited to:  Facebook, Google, Yahoo, YouTube.com, MySpace, etc."

Applicants are then asked to list the web site, their user name, and log-in information and their passwords. 

For those individuals who feel as if their privacy has been invaded by an employer who surfs the web for the "scoop" on potential employees, this must seem like an outrageous intrusion! If there was a balance between what employers should seek to learn about what candidates do in their off-duty time, that balance is all but evaporated for employees in Bozeman City. 

[via Boing Boing]

Want to know more about Facebook's increasing impact on the employment relationship?  See these prior posts:

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

Employers, Job Applicants, and Google

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

MySpace Post Results in Termination of Nursing Student

Discoverability of Facebook Profiles

Eagles Employee Gets Benched for Comment on Facebook Page

Facebook and YouTube Make Employees More Productive. Really??

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

Twitter + Reporters + a Courtroom = A Whole Lot of Controversy

Fumo Found Guilty--No Thanks to Facebook

The Number of Adults Who Use Online Social Networking Sites Is Skyrocketing

Employers Use MySpace for Hiring and, Now, Defending Discrimination Claims

Facebook Makes Friends With the Ladies

A Facebook exchange ex parte has led to the judicial reprimand of a North Carolina judge. The Greatest American Lawyer reports this somewhat shocking story about a judge who "friended" one of the lawyers in a case before him. The lawyer would post questions about the case and his strategy and the judge would respond.  The lawyer replied by posting the comment, "Wise judge."  It's hard to blame this memory lapse regarding the prohibition on ex parte contacts on youthful indiscretion.  

Facebook users too often seem not to understand the potential implications that their postings may have.  Many commentators, myself included, attribute this to youthful indiscretion.  Which may be why stories like this are so difficult to rationalize.

The discoverability of Facebook profiles has been discussed with respect to a plaintiff. But what about a non-party’s Facebook page? Is it discoverable? Is it accessible through non-formal discovery methods? Would that be ethical?

The Philadelphia Bar Association issued an advisory opinion that should be of interest to all litigators. The inquiring attorney sought the opinion of the Professional Guidance Committee about the ethical limits on contacting a witness through her MySpace or Facebook page.

The attorney had deposed a non-party witness whose testimony was favorable to the opposing side. During the deposition, the witness revealed that she had accounts with Facebook and MySpace. Following the deposition, the attorney visited the witness’ Facebook and MySpace pages but was prevented from seeing the content because of the privacy settings on the accounts. The attorney, therefore, cannot access the pages without the permission of the witness. The attorney indicated that the witness was likely to grant any request for access or “Friend Request.”

The attorney proposed to have his agent try to “friend” the witness and attain the desired information from her pages. The agent would provide only truthful information, such as his real name, but would not disclose the reason for his Friend Request or that he was employed by the lawyer

The Committee determined that the proposed conduct constituted impermissible deception that would violate Rule 8.4 of the Rules of Professional Conduct. Rule 8.4(c) provides that it is misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Specifically, the Committee found that the material omission of the attorney’s agent as to his purpose for making the Friend Request, would constitute deception impermissible under the Rules.

Facebook users, beware. Although the outcome here protects the witness’ privacy, there is an underlying message not discussed in the advisory opinion. The fact that an attorney sought the Board’s opinion indicates the high likelihood that there are others out there engaging in the practice already.

If you use Facebook (or MySpace, LinkedIn, or any other social network), then you should be aware of the many implications that your posts could have on your professional image.  There are countless stories of employees who are fired when their employer learns of content on the employee's Facebook page.  Courts have held that Facebook profiles are discoverable in lawsuits.  So, although there is no way to ensure entirely that your content is off limits all of the time, the very least you can do is set your privacy settings to get prevent most of the issues most of the time. 

If you aren't sure that you actually know how to set your privacy settings in Facebook, then you should jump over to The Lawyerist, which has an outstanding post that provides step-by-step instructions for achieving the level of privacy most desirable for professionals.  If, on the other hand, you're more interested in the other side of the coin and want to know how you can view Facebook pages of job applicants, candidates, or employees, then you should watch our video on YouTube that walks you through that process.

Other posts on Facebook for Employers:

Employers, Job Applicants, and Google

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

MySpace Post Results in Termination of Nursing Student

Discoverability of Facebook Profiles

Eagles Employee Gets Benched for Comment on Facebook Page

Employees who surf the web at work are more productive, according to a new survey.  Workers who use the Internet for personal reasons during working time are 9% more productive, says the study's author.  A new catchphrase has even been coined.  "Workplace Internet leisure browsing" is no longer known as "slacking."  Now it's being called "WILB."  And it's claimed to sharpen employees' concentration. 

Notably, the study was conducted on workers that spent 20% or less of their working time on the Internet, though, which makes a big difference.  If you're only on the web for a fraction of your working day, then you're not faced with the temptation after you've satisfied your craving for some WILB.  But, for those of us who spend the whole day staring at the computer screen, I think the temptation is much stronger--once you've jumped online for a little "leisure browsing" to limit the time spent surfing.  

More productive or not, though, employees are getting their Facebook fix whether their employers like it or not.  The study reports that 70% of workers take a leisurely stroll down the information superhighway on a regular basis.  So, are they more productive because of their web habits?  Sorry, I just don't buy it. 

Seth Godin posted recently about the effect that the internet can have on your job search. He explained:

A friend advertised on Craigslist for a housekeeper.

Three interesting resumes came to the top. She googled each person’s name.

The first search turned up a MySpace page. There was a picture of the applicant, drinking beer from a funnel. Under hobbies, the first entry was, “binge drinking.”

The second search turned up a personal blog (a good one, actually). The most recent entry said something like, “I am applying for some menial jobs that are below me, and I’m annoyed by it. I’ll certainly quit the minute I sell a few paintings.”

Employers are doing their homework before hiring new employees.  If you are an employer and you're not looking at a candidate's online profile, you should read some our previous posts (see the list, below), which discuss the reasons for and against screening job applicants on the web.

There's another important, and less common, lesson here, as well.  Godin's story demonstrates how wide spread the effects can be of seemingly innocuous internet communications.  If you are posting pictures of yourself in a drunken stupor and you keep those pictures online while you're job hunting, it just may be that you aren't the ideal candidate. Let's just say it's a judgment issue.  If you don't know what your online profile looks like (or your company's profile, for that matter), then you need get online now.  Run a Google search.  Run a Yahoo search.  Search the blogs.  Then set up a Google Alert to make sure you find out if any new information about you enters the world-wide web.

Don't know how to set up a Google Alert?  Watch our video: How to Use Google Alerts to Monitor Your Online Reputation.

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.

Employers saving money because of Twitter?  It's not actually Twitter that saves employers money, it's the person doing the Tweeting, really. The Tweeter (?) in question is an almost-Cisco employee.  The individual was given a job offer following an interview at Cisco.  He proceeded to Tweet the following:

Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.

A current Cisco employee, after reading this, Tweeted back:

Who is the hiring manager. I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the web.

[Insert chuckle from author.]  Oh, that is justice, is it not?  The Cisco employee saved Cisco a bundle of money by preventing this near-miss.  Cisco now won't be burdened with a disengaged employee and the inevitable costs associated with replacing the employee (sooner rather than later). 

I am left with one slightly troubling question, though.  Was the Cisco employee at work when he read the first Tweet? I'm going to think positive and say he was probably off duty, right?  One thing is for certain--this won't be the last story of employees (and potential employees) who Tweet themselves right out of a job!

Thanks to Ross Ipsa Loquitor Blog for pointing out the story, caught first by Sharon Nelson at Ride the Lightning.

For previous posts on Google, Facebook, and Twitter in the Workplace, see:

MySpace Post Results in Termination of Nursing Student

Discoverability of Facebook Profiles

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

The termination of employees as a result of Facebook posts is not new. Just last week, I posted about the pushback against the Eagles football franchise resulting from its decision to terminate a fan-employee for his Facebook post slamming the team's termination of fan-favorite, long-time player, Brian Dawkins.  The phenomenon is not limited to employees, either.  We've seen teacher-in-training, Stacy snyder, file suit against Millersville University after it refused to grant her a teaching certificate due to her, now infamous, "Drunken Pirate" post on Facebook. 

There's now another student-dismissal story--this one the result of the student's MySpace page.  The University of Louisville nursing student was expelled from the school via a dismissal letter that cited her MySpace postings about "patient activities and identities."  Disclosure of confidential patient information, said the letter, violates the nursing school's code of conduct. 

But the student, Nina Yoder, denies the violation.  Instead, she claims, she was dismissed from the program because school officials believed she was carrying a gun. When she was called in for the meeting, she was patted down by two campus security guards.  She was unarmed and claims that she's never brought a weapon to school.

But on her MySpace page, Yoder defends her right to bear arms--Yoder was a paramedic in the U.S. Army prior to enrolling in the nursing program.  According to the Courier Journal, the page also includes Yoder's "caustic and profane observations on race, sex, and religion, including diatribes against Blacks and Christians."  Yoder has filed suit alleging that her MySpace postings, which, she claims, are protected by the First Amendment, were the real reason for her expulsion. 

[Hat Tip to First Am. Law Profs]

For similar stories:

Facebook Makes Friends With the Ladies

What Employers Should Not Do In A Social Marketing Recruiting Campaign

Discoverability of Facebook Profiles

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

The Number of Adults Who Use Online Social Networking Sites Is Skyrocketing

Employers Use MySpace for Hiring and, Now, Defending Discrimination Claims

Twitter is everywhere! This morning, on Good Morning America, one of the hosts said that there were 100,000 people following the show on Twitter--at that moment!  Yesterday, they answered questions submitted via Twitter during the live section of the program. 

But the newsroom isn't the only place experiencing serious changes as a result of the explosive popularity of microblogging.  The courtroom has had its own share of the Twitter craze. 

• Earlier in the week, one of Pennsylvania's biggest political corruption trials was interrupted temporarily when lawyers for the defendant, former State Senator Vince Fumo, learned that a juror had been tweeting and called for a mistrial. 
• In an Arkansas case, lawyers for a building products company are asking the court to overturn a $12.6 million judgment after learning that a juror tweeted during the trial.  There, the juror is accused of posting this message via cell phone: "I just gave away TWELVE MILLION DOLLARS of somebody else's money." 
• And, last week, a Florida judge declared a mistrial after no less than 9 jurors admitted to have researched the case online.

And the tweeting isn't limited to reporters at a newsdesk. They've taken the show on the road--tweeting right from the heart of the action--in the courtroom.

• For example, a federal judge in Kansas recently granted the request of a reporter to send Twitter posts from the courtroom during a trial. 
• Last month, a Colorado judge approved a similar request, permitting observers to tweet and blog live from the courtroom. 
• Reporters in Orange County reported on the corruption trial of a local Sheriff via Twitter in December.
• And, in Washington, a reporter tweeted the closing arguments of a sentencing trial--in a capital murder case.

What about the lawyers?  Oh, we're tossing around the idea, too.  Kevin O'Keefe posted on ways that lawyers can (and should, according to O'Keefe), using Twitter as a marketing tool almost a year ago. 

Does the old adage, "If you can't beat 'em, join 'em" apply when it comes to Twitter and the law?

A Philadelphia juror returned a verdict of guilty for former Pennsylvania state senator, Vince Fumo, today.  Over the weekend, Fumo's attorneys demanded that the jury's deliberations be halted and requested a mistrial after one juror was caught posting about the trial on his Facebook page and twittering about an impending verdict.  The defense argued that deliberations cease until the twittering juror was questioned about his online disclosures. 

The judge complied with the request but, after questioning the juror, permitted the deliberations to continue.  The judge stated that he was satisfied that the juror had not received any communications about the trial and that the juror's impartiality had not been compromised.

The "tweets" were not specific enough for the judge to find that they were posted in violation of the court's admonition against disclosing the status of jury deliberations.  For example, "Stay tuned for a big announcement on Monday everyone!"

Just hours after being permitted to return, the jury came back, finding Fumo guilty on all counts--137 in all, including charges of corruption and obstruction of justice.  The Fumo trial has been a focus of the Philadelphia news for the entire duration of the five-month trial.  Once considered the most powerful Democrat in the state, Fumo was accused of defrauding the state Senate and others of $3.5 million to support his lavish lifestyle. 

Given the attention surrounding the trial, is it really that surprising a juror just couldn't help himself from talking about it--even in the vaguest terms--online?

This is not the first time Facebook has been in the news in Philly.  Recently, a die-hard Eagles fan was fired for comments he posted on his Facebook profile that were critical of his favorite team's decision to trade fan-favorite Brian Dawkins.  Certainly, this is not the last story of its kind.  Stay tuned and tune in.

For similar stories:

Facebook Makes Friends With the Ladies

What Employers Should Not Do In A Social Marketing Recruiting Campaign

Discoverability of Facebook Profiles

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

The Number of Adults Who Use Online Social Networking Sites Is Skyrocketing

Employers Use MySpace for Hiring and, Now, Defending Discrimination Claims

Facebook strikes again. The potential dangers of impulsive Facebook posting made headlines in Philly this week. The story goes like this:

Dan Leone, life-long resident of South Philly and die-hard Eagles fan, was hired for what he describes as his dream job as a game-day employee at the Linc.  Leone was one happy football fan.  Until, that is, his beloved team traded Brian Dawkins to the Broncos. 

Dawkins was equally beloved by the citizens of the City of Brotherly Love.  After spending 13 of his 13 pro years with the Eagles and, during that time, developed an adoring fan crowd.  When the Eagles traded Dawkins, who is known for his openly emotional style, Philly fans were not enthused. 

And Leone was not happy at all.  You know, Philadelphia residents are known for their passion for sports.  So, like any self-respecting 32-year-old Philadelphian would do, Leone expressed his heartache by posting on his Facebook profile.  Little did Leone know that his heartache had just begun.

Eagles management found out about the posting and they weren't happy either.  They terminated Leone over the phone.  Leone is heartbroken.  And, as reported by the Ohio Employment Law Blog, the public is behind him.  The Philadelphia Inquirer is behind him.

The question is the same--can and should employers consider employees' off-duty conduct, specifically their Facebook postings, when making major employment decisions?

Facebook Makes Friends With the Ladies

What Employers Should Not Do In A Social Marketing Recruiting Campaign

Discoverability of Facebook Profiles

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

The Number of Adults Who Use Online Social Networking Sites Is Skyrocketing

Employers Use MySpace for Hiring and, Now, Defending Discrimination Claims

Social networks have been seen as an outlet used mostly by younger audiences.  Facebook was only for college students and alum until 2006.  But since then, Facebook's growth has not been limited to Gen Y users.  In fact, according to Nielson Online, Facebook's greatest growth has been among users aged 35-49.  Women over 55 are the fastest growing age demographic. 

This shouldn't come as too much of a surprise, especially in light of our report back in January that the number of older users of social networking was skyrocketing. 

I'll be speaking about recruiting with social media in an audioconference next week.  (For registration information, see Feeding Your Talent Pipeline with Online Tools.)  During the presentation, I will spend a good deal of time on best practices for employers who want to leverage online tools, such as Facebook, MySpace, and Twitter in their recruiting efforts.  Until then, it may not be a bad idea to become familiar with what not to do when it comes to online talent marketing. 

Here are some helpful resources to help you get started:

• Tasteful Ad Tactics for Social Media
• Worst Practices in Social Media Marketing
• The Worst Recruiting Video Ever
• Best and Worst Practices of Social Media Marketing
• New Tools, Old Rules, and Careers

In my podcast on employers' uses of an employee or candidate's personal profile on an online social network, such as Facebook or MySpace, I discussed the discoverability of this information in a lawsuit.  Employers frequently research potential applicants' online profiles for hiring purposes.  Employers also can monitor current employees through their online profiles to ensure that they do not leak confidential or proprietary information or commit other wrongs harmful to the organization.  I've also speculated that what an employee posts about himself online could also be potentially important evidence in an employment-discrimination suit, as well.  There has been very little discussion of this question, though, by the courts. 

That's why a recent decision by the Ontario Superior Court of Justice is particularly interesting.  All About Information posted about the case, in which the defendant was permitted to cross-examine a plaintiff in a motor-vehicle-accident suit about material he posted on his Facebook profile.  The content, the defense argued, was relevant to the plaintiff's claim for loss of enjoyment of life. 

The defense had not learned of the potentially revealing information until after the discovery period had closed.  The Master denied the defendant's request, finding that the mere existence of a Facebook profile was not reason to believe it contained relevant evidence about his lifestyle.  Without evidence to support this conclusion, the request was nothing more than a fishing expedition. 

The appeal judge disagreed, stating:

With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.

Leduc v. Roman, 2009 CanLII 6838 (ON S.C.).  I suspect holdings like this will become more and more common as employers (and defense counsel) begin to catch on to the wealth of information employees voluntarily disclose about themselves online.

Employers's many uses of online social networking sites, such as Facebook, in recruiting, hiring, and monitoring, has been my theme this week.  I've said a lot on the issue so I'll turn it over to someone else for the final thoughts of the week.

Jonathon Bick, of the New Jersey Law Journal, has a piece on Law.com's Legal Technology News offering some excellent advice for employers who may be considering using social networks, such as LinkedIn, Facebook, and MySpace, in their hiring practices.  Specifically, he suggests the following three tips:

• First, attempt to ensure the firm's personnel who research potential employee's background comply with the appropriate third-party terms of use agreements while data mining blogs.

• Second, update the firm's employee handbook to detail what data mined from blogs may be used, and what data mined from blogs may not be used.

• Third, update disclosures and background search permission acknowledgements used by potential employees and existing employees to appropriately cover blog review.

I raised each of these points in my podcast posted earlier in the week, Social Networking Sites As Employment Tools.

Employers' use of social networking sites, such as Facebook, MySpace, LinkedIn, and, more recently, Twitter, is the them of my guest posts this week on the LexisNexis Workers' Compensation Center.  I've posted this week on the many ways employers have found to use these online tools (How Employers Are Putting Online Social Networking Sites to Work ), and about the risks that employers face when using these tools to investigate employee fraud.  Today we did a podcast on the same topic, which you can download here for free. 

The use of online social networking sites has continued to skyrocket--including use by adults over 25.  So long as this trend continues, it seems difficult to imagine that employers will simply ignore the potential resources that exist online.  As I've previously discussed, there are plenty of reasons to utilize these tools.  But there are even more reasons to do so in a way that will avoid as much legal risk as possible.  Check out the podcast to learn more.

Employers who use MySpace and Facebook as hiring tools have been the subject of some debate.  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.  Recently, there was some discussion about the use of social networking sites as a way to defend an employer in an employment litigation lawsuit.

And now, there's talk of yet another purpose for the use of online profiles.  In the Fall issue of Litigation News, a quarterly magazine published by the ABA's Litigation Section, an article entitled Know Thy Judge advocates conducting an internet search on the judge assigned to your case.  Specifically, the article suggests that counsel should "Google the judge" before appearing in his or her courtroom, in the hopes of gaining insight on the judge's personality, habits, or tendencies. 

I wouldn't expect that many judges maintain public Facebook or MySpace pages.  But, in twenty years, when the bench is filled with Gen Ys wearing black robes, will their "internet past" play a relevant and important role?  It seems inevitable, doesn't it?  Especially in light of the recent report that the number of adults using online networking tools has quadrupled in the past three years. 

Teens outrank adults in the use of social networking sites by 30%.  But the popularity of social networking sites is not limited to teenagers.  Currently, one-third of adults in the U.S. have a profile at a site like MySpace or Facebook.  And this number is rising.  In fact, the number of adults who utilize these sites has quadrupled since 2005, according to the Pew Internet & American Life Project’s December 2008 tracking survey. 

See the full survey here:  

What are the consequences of this skyrocketing use?   They can only be imagined.  As we've posted about previously, employers are taking a hard line when they discover what they consider unacceptable conduct by employees.  With more and more adults spending time on sites like Facebook and its more "grown-up" cousin, LinkedIn, it seems inevitable that there will be more and more terminations resulting to online conduct.

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.

Employee foibles on social networking websites are back in the news.  According to the Raleigh News & Observer, a teacher in the Charlotte-Mecklenburg Schools may be fired because of derogatory comments about students that the teacher posted on her Facebook page. 

The comments included referring to "teachin' chitlins in the ghetto of Charlotte."  The teacher went on to note in the "About Me" section of her Facebook profile that she is "teaching in the most ghetto school in Charlotte."  She also listed drinking as one of her hobbies.  Apparently, other Charlotte-Mecklenburg teachers also have objectionable Facebook pages as the news story reports that several other teachers from the same district have been also reprimanded for Facebook comments that show, in the district's view "poor judgment and bad taste."   

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.

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 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}

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. 

Among Delaware employers and in the world of employment law nationally, there has been much talk about Web 2.0 and the power of social networking tools.  Delaware businesses, like employers across the country, are worried about what is being said about them online.  They should be.

Many of you already know about the impact weblogs and online social networks can have on a business.  Of course, these impacts can be both good and bad. If it were all bad, I wouldn't be blogging on our department's firm-sponsored blog.  Many businesses have begun to embrace these new mediums to reach a broader audience. They've turned to social networking to communicate with a broader audience in an effort to maximize exposure to their products, their message, or their brand.

Other businesses have felt first-hand the negative impact of Web 2.0 communications.  For example, some companies felt massive financial reverberations because a popular blogger posted about his or her negative experience with the company's product or services.  The comments can spread uncontrollably on the web and employers are left without any real recourse. 

Another common scenario involves blogging employees.  With the explosion of the blogosphere, employees have taken to the web to share their personal stories of triumph and tragedy.  Sometimes their stories include not-so-nice commentary about their workplace. The employer is put into a very difficult situation.  If they terminate the blogger, they may be able to at least cut off the blogger's supply of "material" that can be put online.  But termination is not without risk. The terminated employee may respond with more hostile posts than ever before.  And, as newly unemployed, the blogger has plenty of time on his hands to post, and post, and post.

So what to do? We counsel our employment-law clients to institute a blogging policy if they haven't done so already. This is not to say that, as employment lawyers, we advocate for a flat-out ban on employee blogging.  But, at the very least, there should be a policy in place providing that any employee whose blog posts include the company's confidential information or trade secrets, will be subject to discipline, up to and including termination.

A different approach used by some employers could be described as the, "If you can't beat 'em, join 'em policy."  Some companies may go so far as to hire a Chief Blogger In Residence.  The CBR's job is to post like crazy about the positive aspects of the company, its employees, or its products. The Chief Blogger also scans the web to monitor what others are saying and provide an appropriate response. 

Given the cost, CBRs are not exactly commonplace.,  As an alternative, an employer can use online notification tools like Google Alerts, which will search the web for your company's name. When new "hits" are discovered, you recieve an e-mail alert with a link to the site where the company's name was found.  Searching for yourself or your company is known as a "reputation search."

There is now a new product designed to do conduct "professional" reputation searches.  Trackur promotes itself as an "online reputation monitoring and brand tracking tool.  It has been described as "Google Alerts on steroids," according to the Trackur website.  And what makes this pay-for-play, subscription-based tool better than the free Google one?   Having not tried it myself, I'll leave it up to you to decide. 

The plans are not cheap.  A monthly subscription to have just one search saved and run twice daily is $18 per month.  Jump to 5 saved searches and you're up to $88 per month.  I have no experience with Trackur so I can't say what value it actually has.  But even if Trackur isn't met with fabulous success, I'd be willing to wager that similar monitoring tools are not far behind.  Any employer concerned with what its employees are saying about the company, and any business concerned with its online reputation would have good reason to consider an "online reputation-monitoring tool."

***Prior posts on blogging include: Blogs In the Workplace and Somebody’s Watching You: New Data on Employers' Electronic Monitoring