While the information posted on the Internet on social networking sites is usually public for everyone to see, employers need to be aware of potential claims for using this information in the employment context.  The law, as usual, cannot keep up with the fast-moving technology and change social media sites, so there are many uncertainties in this area.  This Friday’s Five discusses potential pitfalls California employers need to be aware of when conducting background checks.

1. Local City “Ban The Box” Ordinances

Many local cities in California have passed ordinances restricting an employer’s ability to conduct criminal history checks on applicants and employees.  For example, Los Angeles passed the Fair Chance Initiative for Hiring Ordinance that prohibits employers from seeking criminal background information prior to offering a job to applicants.  The law became effective on January 1, 2017, and the city began enforcing the law on July 1, 2017.  Under the ordinance, employers cannot conduct any “direct or indirect” activity to gather criminal history from or about any applicant using any form of communication, including on application forms, interviews or Criminal History Reports.  This includes searching the internet for information pertaining to the applicant’s criminal history.  Employers must be aware of their local ordinances to ensure that any background research on applicants or employees meets the requirements that apply to them.  More information on Los Angeles’ ordinance can be read here.

2. Federal and State Discrimination Claims

Because people are becoming so comfortable in sharing private information on social networking sites, employers may learn too much information about an applicant that would not and could not have been discovered through an interview. Discovery of this personal information is not unlawful – it is likely that the employer would find out many of these traits at the first in-person interview with the applicant anyway. However, employers cannot base its employment decisions upon a protected category, such as race or gender.   By learning about this type of information of an applicant via their on-line profile, the employer may have to explain that the information did not enter into the hiring decision.

3. Invasion of Privacy Claims

Though one might argue that members of social networking sites have no expectation of privacy (since the information is posted publicly) some applicants or employees might argue that the employer overstepped its legal bounds by using profile data in employment decisions. Arguably, the terms of service agreement may create expectation of privacy for users of site.

State Law Privacy Claims
Employees could potentially argue that using Facebook, Snapchat, Instagram, or similar site to conduct background checks violate state statutory law. For example, California and New York have statutes that prohibit employers from interfering with employee’s off-duty private lives. Employees may attempt to argue a public policy violation has occurred in violating a state statute that protects off-duty conduct from employer’s control.

State common law could also create liability. Generally, there are four common law torts for invasion of privacy:

  1. intrusion upon seclusion,
  2. public disclosure of private facts causing injury to one’s reputation,
  3. publicly placing an individual in a false light, and
  4. appropriation of another’s name or likeness for one’s own use or benefit.

As explained by one court, the tort of unreasonable intrusion upon the seclusion of another, “depends upon some type of highly offensive prying into the physical boundaries or affairs of another person. The basis of the tort is not publication or publicity. Rather, the core of this tort is the offensive prying into the private domain of another.” (citing Restatement (Second) of Torts § 652B, comments a, b, at 378-79 (1977)). Generally, the invasion of privacy must consist of (1) highly offensive intrusion (deceitful means to obtain information); and (2) prying into private information (information placed on the web is most likely not private).

4. Fair Credit Reporting Act (“FCRA”)

An employer’s use of social networking sites may implicate the FCRA, which places additional disclosures and authorization requirements on employers. In enacting the FCRA, Congress stated its underlying purpose was to ensure that decisions affecting extension of credit, insurance, and employment, among other things, were based on fair, accurate, and relevant information about consumers. The FCRA is intended to provide employee with notice of the background check, authorization to conduct the check in certain circumstances, and disclosure to the employee if the information is used in the employment context.

FCRA Definitions:

  • A “consumer report” is defined at as information (oral, written, or other communication) provided by a “consumer reporting agency” about credit matters as well as about a person’s “character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for…employment purposes.”
  • Another kind of “consumer report,” called an “investigative consumer report” contains information on a consumer’s character, general reputation, personal characteristics, or mode of living that is obtained through personal interviews with friends, neighbors, and associates of the consumer.
  • A “consumer reporting agency,” is defined as “any person who regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.”

Employers who conduct the background checks internally do not qualify as a “consumer reporting agency” and therefore the FCRA does not apply. Employers still need to be careful, however, because state law may apply. For example, California Investigative Consumer Reporting Agencies Act is more restrictive than the FCRA.

5. Terms of Service Violations

Social media sites have terms of service posted on their pages that generally prohibit use of their content for “commercial purposes.” Violation of the terms of service would not automatically create a cause of action in and of itself. However, as discussed above, it may be a way for a plaintiff to argue that there is an expectation of privacy in using the site and everyone who signs up to use the site is agreeing to abide by those terms.

IMG_4751 (1)Mid-way through 2017 and the California legislature is busy and, as expected, there are a number of employment law bills making their way through the legislature.  This Friday’s Five reviews five bills that could have a major impact upon California employers if passed:

1. AB 168 – Prohibition of asking salary history when hiring employees.

This bill prohibits employers from seeking salary history information from applicants and requires employers to set pay scale for positions and to provide this information to applicants.

2. AB 1008 – Statewide “Ban the Box” (limiting any questions by employers about criminal histories on applications).

Los Angeles and San Francisco have already passed regulations prohibiting employers for asking about criminal histories before a job is offered to employee.  This bill would apply similar requirements on employers state-wide.

3. AB 1565 – Increasing the required salary threshold to $47,472 annually ($3,965/month) for white collar exempt employees.

To qualify as an executive, administrative, or professional employee exemption, employers bear the burden of establishing that the employee is paid a salary the equivalent of two times the state minimum wage and that the employee spends more than 50% of their time on exempt duties.  With the state minimum wage at $10.50 per hour for large employers as of January 1, 2017 the currant salary level that must be paid in order to qualify for the white collar exemptions is $43,680/year.  On January 1, 2018, the state minimum wage increases to $11 per hour for large employers, raising the salary required for exempt employees to $45,760/year.  This bill proposes to increase the salary required to be paid to employees to meet the white collar exemptions since the Department of Labor’s attempt to do this on a federal level stalled at the end of last year.

4. AB 1209 – Internet publication of wages based on gender. This bill would require employers to publish information about “pay gender differentials” on a website open to the public. 

The bill would apply to employers who are required to file a statement of information with the Secretary of State and who have 250 or more employees to collect specified information on gender pay differentials. The bill would require an employer to annually update, publish, and submit the information.

5. SB 63 – Require small businesses to provide parental leave.

Currently, employers with 50 or more employees are required to comply with the California Family Rights Act and provide parental leave of up to 12 weeks to bond with a new child within one year of the birth.  This bill would lower the number of employees for covered businesses to 20 employees in a 75-mile radius.  The bill would also prohibit an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave.