NAPS Legal Update

Hello all - See the attached article from the National Association of Personnel Services.

Joe Madden CPC/CTS

District One Director - NAPS

LEGAL UPDATE

CAN YOU KNOW TOO MUCH?

About Your Candidates:

Amegy Bank, a multi-branch bank based in Houston, is a recruiter's dream. They are prospering and regularly hiring new employees. They have also just begun to use recruiters to help them fill their open positions. But, according to a recent article in Texas Monthly, "you won't find Amegy Bank of Texas CEO Paul B. Murphy Jr. uploading new profile pictures onto Facebook or linking Twitter feeds to a MySpace page."  Not only that, but Amegy has determined to prohibit its in-house staff and its external recruiters from accessing social networking sites to recruit or learn about prospective employees. At the time the article was written, the bank was considering whether to extend this ban to professional networking sites such as LinkedIn.

Why does the bank fear the use of these extremely popular sites in its sourcing and evaluation processes?  Simply, the bank fears it will learn too much about its candidates. Outside employment counsel has advised Amegy that it may discover information that it may not usually use to determine whether to hire a candidate, and therefore it should avoid the possibility it will come into contact with the "poisoned information."

A hypothetical raised by Amegy's counsel is: suppose you bring up a candidate's page on a social networking site, and she and her friends have posted a discussion about her upcoming baby shower. You determine not to hire the candidate. Even if you have done so for a lawful reason, you have made it easier for her to argue that you refused to hire her because of her pregnancy, which violates the federal, and most state, anti-discrimination laws. So, counsel's argument goes, since you can't discriminate against someone based on information you do not know, it's best not to put yourself in a position where you can know it.

CEO Murphy has made it clear that Amegy is not interested in blazing new trails in the use of social networking sites. "The pioneers are the ones who wind up with arrows in their backs," he said. (Before the temptation to reply with sarcasm becomes overwhelming, remember that Murphy's company is growing and aggressively hiring new employees.)

I guess if lawyers always agreed with each other, we couldn't make any money, and I'm not sure if I'd go nearly as far as Amegy has. Yes, you can learn something about a candidate that could be used against you if you are unable to articulate a legitimate reason for refusing to refer him or her. On the other hand, you may learn very legitimate information about a candidate's past, present or maturity level that dissuades you from referring him or her, and makes you a more valuable resource to your clients. No one, including Amegy's counsel, is taking the position that the use of social networking sites is illegal. Rather, it's a risk/reward decision that only each of you can make. Is the additional lawful information you may learn more important than the chance you may stumble upon something that puts the candidate in a protected class?

I have a feeling most of you will say "yes," and I won't disagree with you. What is important is that, first, you know what information you may or may not use - another reason to obtain that CPC or CTS credential - and second, if you learn that a candidate is pregnant, old or a minority, that you carefully document your basis for failing to refer the candidate. For example, if an African American is not referred because he has posted obscene remarks, can you demonstrate that you have not referred white candidates who have made equally offensive statements?

You shouldn't pass on, use or require candidate photographs, because, with very rare exceptions, there is no legitimate purpose to counter-balance the potentially unlawful information they reveal. I believe that video resumes might have a legitimate purpose and can be used, so long as you are willing to assume the risks as stated above. While I am way too old to understand Twitter (is that the bird that appeared in the cartoons with Sylvester the cat?) or social web sites, it would appear to fall in the same category as the video resume - it's not illegal to use them, just be careful (and informed) out there.

About Your Employees:

It is no longer unusual to see employees complaining about or insulting their employers via the internet. The general rule has always been that, subject to certain exceptions, employers are perfectly free to fire at-will employees if they find an internet posting that they believe merits termination. The Hillstone Restaurant Group, owner of the Houston's Restaurant chain, recently learned to its detriment about the risks of firing employees who have made negative comments about it on a site to which access is restricted.

A few Houston's employees established a private, password-protected, group on MySpace called "The Spec-Tator."  The founder, in his initial post, stated that the Spec-Tator was "entirely private and could only be joined by invitation."  A number of Houston's employees joined the site and posted sexual remarks about management and customers, jokes about Houston's standards for customer service and references to violence and illegal drug use.

Karen St. Jean, a Houston's employee who was an authorized member of the group, showed the Spec-Tator to a manager. Subsequently, another Houston's manager asked her for the password, which she provided. After this manager and a regional supervisor of operations accessed the site, the supervisor fired the founder and another member for violating Houston's four core values of "professionalism, positive mental attitude, aim to please and teamwork."

The fired employees sued on two bases: invasion of privacy and violation of the federal Stored Communications Act.  Houston's defended on the basis that its access to the site was authorized by a member, and therefore not unlawful.

St. Jean testified that when she disclosed the password, she did not think that she would be fired if she didn't, but she thought she "would have gotten in some kind of trouble. " Because of that, the judge did not find that St. Jean's consent was given voluntarily, but rather submitted the question to the jury, which found that the consent was not voluntary and found for the plaintiffs on both counts. The plaintiffs were awarded lost wages (not significant because they were hired elsewhere soon after they were fired), punitive damages of four times actual damages under the federal law, and attorney fees, also under federal law.

Does this case interfere with your right to fire an employee for information he or she publically posts?  No. State laws will vary on this, and you should check on these before acting, but you generally can fire an employee if you are displeased with a blog or other posting. There are exceptions. If the employee is engaged in a form of collective bargaining (whether unionized or not), or is complaining under circumstances where he or she is protected from retaliation, such as employment discrimination, he is protected from being fired in retaliation for making these statements.

If you are trying to terminate an employee for statements made on a password protected site, however, you run a serious risk of liability, and it will usually be best not to act on such information.

Those with questions or comments can contact NAPS counsel Bob Style at rpstyle@sprynet.com.