It’s been barely four days since I wrote about the developing trend of state legislatures proposing new laws that would prohibit employers in those states from demanding social media passwords from job applicants.    My take away on Monday was:  “I predict that more states – and perhaps Congress on the federal level – will continue the trend disfavoring any demand for passwords during the hiring process.”    I’m not going to Vegas any time soon on my hunches, but it appears that this growing snowball has now rolled down Capitol Hill in Washington.

The press that this issue has garnered in the papers and online has reached the desk of United States Senator Richard Blumenthal (Democrat from Connecticut), who announced yesterday that he is now penning federal legislation that would bar employers from asking for social media passwords.    As quoted by Michelle Maltais in the L.A. Times, Senator Blumenthal stated that “[t]hese practices seem to be spreading, which is why federal law ought to address them. . . .  They go beyond the borders of individual states and call for a national solution.”  

I am not sure that Facebook passwords should necessarily trump out-of-control gas prices or the burgeoning crises in Afghanistan and in our own inner-city backyards, but our federal politicians do react (and swiftly) to the winds blowing in the moment.  And at this moment, privacy advocates and the general population with profiles are demanding action to prevent employers from viewing content that those with profiles do have control over in terms of the positive and negative postings they include.

Employer Take Away:   What should you as an employer take away from this development?   

Keep watching and listening.    The government’s presence in your company’s hiring practices will continue to be felt.   So keep your eyes and ears open for all things legislative, administrative, and judicial that will affect what you can and can’t do as it relates to the use of social media for employment decisions.   We will, of course, continue to update you on this issue.

On Monday, I talked about the latest initiative by state legislatures to prevent employers from demanding that applicants provide their social media passwords.   A second trend has emerged with employers, whereby an applicant’s credit history and financial-related information are relied upon for hiring decisions.   As with any background information, social media affords employers that same ease and speed in obtaining information about the creditworthiness and solvency of those applying for jobs.

Is that information relevant?   Or, is it just another one of those categories of information that employers are obtaining because they can?     That is the debate, and state legislatures are trending toward legislation that prohibits the use of credit reports for employment decisions, whether for hiring purposes or post-hire decisions.   

Employers argue that an individual’s credit history and financial wherewithal are relevant to particular jobs, such as bank tellers and other positions involving the handling of money.   However, those on the other side, including the United States Equal Employment Opportunity Commission, argue that the use of credit histories tends to have a discriminatory impact on minorities, women, and disabled individuals, with no evidence that financial history has any correlation to one’s ability to perform a job.   I believe that a proper balance needs to be in place, so that, while we all want to eliminate any potential abuse and stereotyping, employers should still be able to rely on pertinent background information relating to the particular requirements of a job position.

Seven states currently have laws that prohibit employment-related decisions based on credit reports, including California, Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington.   And, according to a recent survey, twenty-nine other states (and the District of Columbia) have introduced proposed legislation to accomplish the same purpose.    What do you think – Is this a valid exercise of employee protection, or another example of government encroaching on the ability of an employer to make decisions that affect its business?

Employer Take Away:   What should you as an employer take away from this development?   

Like the recently-proposed laws addressing employer demands for social media passwords, there continues to be a rapidly-developing trend toward restricting the type of information that employers can obtain and rely on when it comes to hiring decisions.   How the tension plays out between that legislative trend and the desire of employers to take advantage of the benefits afforded by social media, particularly as the final versions of these laws is still largely unwritten, remains to be seen.

We are told that things are getting better out there, notwithstanding how much more it’s costing to drive ourselves out there.   But hiring seems to be inching upwards, they say, and that comes with a host of issues for you to consider.   Particularly as it relates to employer use of social media.   Today and Wednesday, I will be noting two of those issues that should result in, at least, you pausing before quickly hitting the next key stroke.

The first “trend” appears to be that a greater number of employers are demanding that applicants for employment disclose their social media passwords as part of the interview/application process.   From the employers’ standpoint, why not?   They’re looking at the employees’ public profile and background information available online anyway, so why not make it easier and get the password for the private stuff?   Plus, what do those employees have to hide?  From the employees’ vantage point, it is yet another intrusion into their private lives, and opens the door to employers obtaining and relying on information that has no real relation to their ability to perform the job.

There are generally two ways to react to a trend:   either facilitate and enable the continuation of that trend, or attempt to buck the trend.     We told you last March 14^th and April 26^th about Maryland becoming the first state to propose legislation that would prohibit employers from demanding social media passwords.   That bill has not yet been enacted into law, however the “buck the trend” train has since passed through additional legislative stops.

For example, in Illinois, the legislature just introduced a proposed amendment to the state’s Right to Privacy in the Workplace Act that would make it illegal for an employer to gain access to an applicant’s social networking account during the hiring process.   Rather broad in the term “gain access”, but it does not appear that the bill would proscribe any access to an otherwise public profile.

Similarly, the California state legislature (surprise, surprise) recently introduced a proposed law entitled “employer use of social media.”     Interestingly, the bill does not simply address access to social media, but deals with the issue in the context of an employer’s existing legal duties when it comes to negligent hiring.    The proposal provides in part:

“Under existing common law, an employer has a duty to exercise reasonable care in employing a person and is required to use reasonable care to discover whether a potential employee is unfit or incompetent.  This bill would provide than an employer does not fail to exercise reasonable care . . . by the employer’s failure to search or monitor social media, as defined, before hiring the employee.   This bill would also prohibit an employer from requiring an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee.”

So, while the proposed California law would end the practice of demanding social media passwords by employers, at least it also provides protection to employers who argue that today’s digital age puts a burden on them to do such comprehensive background checking in the first place.

Employer Take Away:   What should you as an employer take away from this development?   

I predict that more states – and perhaps Congress on the federal level – will continue the trend disfavoring any demand for passwords during the hiring process.   The question becomes how broadly or narrowly the laws are written, and whether they also offer a modicum of protection to the employers who are surely faced with the argument that they are required to “check out” an applicant as long as the information is so readily available.

But when it comes to your hiring practices, like everything else, don’t just do for the sake of doing.  Think about what you’re really trying to accomplish, and then whether your pre-employment process will truly effectuate that goal.   At the very least, determine the status of legislation on this issue in your jurisdiction.

I read a fascinating series of posts this week by Forbes journalist, Kashmir Hill, who first wrote on Monday morning about a recent study published in the Journal of Applied Social Psychology.   That study asked HR professionals to view the Facebook pages of hundreds of college students and rate their employability based on what was contained on those pages.   Ms. Hill began with the proposition that checking an applicant’s page before an interview “may be a fairly accurate reflection of how good they’ll be at the job.”  She spoke with one of the study’s authors, who referred to certain “personality red flags”:

“[A] person with obvious mood swings, who is overly emotional in their postings would not be an attractive candidate.   Meanwhile, a person with a lot of Facebook friends who takes a lot of crazy photos would be rated as extroverted and friendly – which are attractive qualities in a candidate.”

Ms. Hill’s second post on Tuesday  is entitled “What Employers Are Thinking When They Look At Your Facebook Page”.   Her admonition:  “Like it or not, Facebook and other sites like it are becoming the digital proxies for our real world selves.”    Ms. Hill’s descriptions of the study’s actual rating categories, and the comments she received from readers of her first post, are definitely worth perusing.

Employer Take Away:   What should you as an employer take away from this development?   

I agree with the part of Ms. Hill’s posts that reflect the tension existing in today’s reality –  That employers do look at social media activity when making employment decisions, and that employees do not believe that what they write and depict online is reflective of the whole picture of themselves.   However, while Ms. Hill accurately notes that “[o]f course, there are some legal questions to think about before jumping into someone’s Facebook page,” your company would be wise not to minimize those legal questions simply because you are essentially a bright-eyed kid entering the amusement park that is online information.

The legal world – the legislative, judicial and executive branches, intent on balancing the tension – has not yet totally caught up to today’s realities.   Until it does, and there is definitive guidance, the key for you as an employer continues to be to fight the urge to be trigger happy and form instantaneous judgments solely based on what you see through social media.   Be careful, as it is unlikely that the decision makers in your organization have psychology degrees, and what may appear as “obvious mood swings” could turn into a claim that your company regarded an applicant as “disabled”.

Takeaway questions, then:   (1) Have you accessed the social media information lawfully?  (2) Who is accessing the information on your company’s behalf?  (3)  What information is truly relevant to your decision process, and how are you separating the relevant from the irrelevant/unlawfully considered?  (4) Are you appropriately documenting your decision process?  (5)  Have you verified the reliability of the information?

I just read a very interesting article on CNN.com entitled: “Twitter:  Often first, not always right.”   It asks the great question that seems to be ripe for discussion these days when it comes to social media information:  What is the goal of posting – speed or accuracy?

Those who post on social media sites, either as a profession or professed hobby, have recognized both the competitive nature of 24/7 news “reporting” and the undeniable thrill of having one’s post be the first to go viral.    The information contained in the posts, thus, falls somewhere between the game of telephone (unintended story embellishment as it is circulated) and an outright mischievous hoax.   How many times have we heard that Jon Bon Jovi or some other celebrity/athlete has died?   It must be true because all 5,137 of your Facebook friends saw a post and re-posted it, right?

The CNN article places the issue in the context of news reporting, noting how “[o]n January 21, Penn State student website Onward State ran a story claiming that Paterno had passed away.   The article was picked up by a blog on CBS Sports and spread rapidly on Twitter.  Except that the article was incorrect – Paterno was in a serious condition but did not in fact pass away until the day after the report ran.”

The article further notes the current tension between first and fact:

“There’s reason to believe that Twitter and Facebook users – in their new roles as the distributors of news on the web – are becoming cautious about sharing news with their friends without personally verifying it.  As Facebook user Nuno Valente said of the news: “Twitter was faster than ‘traditional’ press in regard to the Whitney Houston death but usually cries wolf just for fun.”

Have we sacrificed accuracy and verification for the sake of speed and 15 minutes of fame?    Do we even expect accuracy in social media posts anymore?    Should we?

Employer Take Away:   What should you as an employer take away from this development?   

As employers, yes, you should.   Employers need to be right, if not act in good faith.   Social media provides quick and easy access to a plethora of information – information on which employers want to (and often feel they need to) act.   To avoid liability, think about this when you read something supposedly about one of your employees, or something that was supposedly said by one of your employees:

             1.         Make sure the source of the information is reliable.   Better yet, make sure you know the source.

             2.         One of the timeless messages of this blog: Don’t be trigger happy when it comes to making decisions based on social media activity.   And reason # 146: because you want to first do some due diligence as to the veracity of what you have seen or read before taking some adverse action against the employee.

All employers and all employees are feeling the effects of social media on work time.   And not just here in the United States; in countries like Brazil.

Concerned about overwhelmed Brazilians and the potential for continued abuse of out-of-office work requirements, President Dilma Rousseff of the already pro-employee country of Brazil has just signed a law that affirmatively requires employers to pay overtime rates for any after-hours work-related e-mails and phone calls conducted through an employee’s smart phone.  

On the one hand, the new law may further increase costs for employers, as well as the potential for more litigation in that country.   On the other hand, the new law may benefit everyone by making it more likely that expectations are the same on both sides when it comes to this era of technology and social media.   For example, there may now be less confusion over the definition of “working time,” and fewer misunderstandings about whether an employee who is engaging in some work activity through a BlackBerry, iPhone, or other smart phone after hours must be compensated, and must be compensated at a particular premium rate.

Employer Take Away:   What should you as an employer take away from this development?    

Here in the United States, there is still much confusion over rights and obligations when it comes to employees working after work.   But is there really an “after work” anymore?  Employers here continue to grapple with setting appropriate boundaries between work and personal time in this era of mobile work stations and 24/7 communication.   Several companies have even been sued already by employees alleging that they were not properly compensated for smart-phone activities “after work.”

It continues to be about managing the expectations and maintaining control over an increasingly out-of-control era.   Don’t blink, because laws like Brazil’s new regulation may soon come to a theater near you.   In the meantime, your company should consider:

            1.         Do all employees (in particular, all non-exempt employees) get Company-owned smart phones?   Do all employees have access to work e-mails outside of their offices, even through their personal smart phones?   Consider limitations on who gets the BlackBerry, and who has the access, so that you have less to worry about when it comes to out-of-work work by those eligible to receive overtime pay.

            2.         Are all employees authorized to work overtime whenever they want?   Do you have a policy addressing that issue?   Your company may still need to pay for overtime, even if unauthorized, but the right policy will go a long way toward managing expectations, and make it easier to impose other forms of discipline for violators.

            3.         Do your supervisors and managers have the same mindset as HR and your corporate executives, or do supervisors and managers expect employees to respond to after-hours e-mails and phone calls?   Do you have a policy addressing that issue?   Have you trained your supervisors on the appropriate mindset?

            4.         Have you set up appropriate record keeping practices to comply with current legal obligations requiring you to accurately record and maintain records of all employee work time?

In short, do you have the right mindset on these issues?

Tired of all the acronyms?   Employment law is full of them.   EEOC, FMLA, ADA, ADEA, ERISA, USERRA, WARN, FLSA, ECPA, OSHA, HIPAA, and I could go on.   When it comes to social media, we’ve included NLRA, NLRB, and FTC in the lexicon.   Here’s the next one:  FDA.  As in, the United States Food and Drug Administration entering the ring of discussion by issuing its own “draft guidance” on certain social media use.

The FDA’s draft guidance solicits comments and suggestions for the next 90 days, and constitutes the FDA’s “current thinking about how manufacturers and distributors of prescription human and animal drug products and medical devices can respond to unsolicited requests for information about unapproved or uncleared indications or conditions of use related to their FDA-approved or cleared products.”   What??!   Say that again??   Basically, what drug companies can do and say to promote their products and devices in a manner other than the uses already approved by the FDA.

The FDA issued this guidance specifically because of this era of cataclysmic social media explosion:

“The rapid growth of the Internet, including social media tools and other emerging technologies, has made it easier for both consumers and health care professionals to quickly seek information about medical conditions and treatments.   Many firms have also used emerging electronic media to disseminate product information.  As a result, firms may encounter requests for off-label information about their products through product websites, discussion boards, chat rooms, or other public electronic forums that they maintain and over which they have full control. . . .  This draft guidance provides FDA’s recommendations to firms wishing to respond to unsolicited requests for off-label information, both requests made directly and indirectly to firms and requests made in public forums, including through emerging electronic media.”

The FDA is, therefore, concerned that the ability to monitor and regulate what may be promoted by a company on a one-to-one basis, may be radically altered by the realities involved with dissemination en masse through social media.

Employer Take Away:   What should you as an employer take away from this development?   

If you’re not a manufacturer or distributor of drug products and devices, this new industry guidance does not apply directly to you (and, frankly, I’m a little surprised you kept reading to the “takeaway”).   But the bigger picture is that we don’t have just one employment law bible, and certainly not just one source to go to for every possible rule on the impact that social media has on business and the workplace. 

Judges keep issuing decisions, statutes are being created and applied, and the NLRB updates its views and rulings.  Now, here’s yet another body (the FDA) that recognizes the importance of social media enough to throw its own “current thinking” on the topic into the ring.  Without just one source book, you as an employer need to continue keeping your eyes and ears open for all new developments in this area, from wherever they may come.   And we will do our best to continue being one of those sources.