HR & Social Media: Protected Class Guide

You can’t unring the bell … why put yourself (or your company) in a potentially sticky situation when it comes to hiring and the use of social media as part of the hiring process?

HR departments are using social media as a tool for potential employee research, though this has been one industry that is slow to warm up to the idea. In some cases, it may simply be that the company doesn’t have enough manpower or time to devote to another task; for others, they may see it as a still very grey, muddy area they don’t want to get involved in.

Part of the fear is knowing what’s okay and not okay to see, and how to make sure your hiring managers are only seeing the “right” content. There are many ways to work around this, including using a third party vendor or making sure that the person doing the social media research is not the hiring manager; by doing this, you can make sure that your company is in compliance with the FCRA.

Did you know there are federal and state specific protected classes? If your company spans the country, are you aware of the different classes?

Here are some interesting examples:

  • Whether a candidate obtained a GED vs graduating from high school is a protected class in PA
  • Place of birth is a protected class specific to VT
  • Height & weight is protected in MI
  • The following states only follow federal statutes and do not have any state specific protected classes: AL, ID, MS, SC

These are just some of the protected classes; while these may seem like areas that would not come to light when viewing a person’s social media sites, it’s possible. And what about the more commonly shared pieces of information, such as marital status, whether or not someone is a parent, or mental illness history? You never know to what extent people share their lives online anymore; it’s best to err on the side of caution.

If you are handling social media background checks internally, we’d like to share a list of protected classes at the federal and state levels.

Federal

  • Age (over 40)
  • Color
  • Disability
  • Genetic Information
  • Military Status
  • National Origin
  • Race
  • Religion
  • Sex (includes pregnancy)
  • Veteran Status
State
Protected classes vary by state. Click here to see the state by state list of protected classes

 

Social Media in Court: A Look Back at Casey Anthony & Scott Peterson

I’ve often wondered what the OJ Simpson trial would have looked like had social media been a “thing” at the time – that was an extremely high profile case that would have likely blown up social media.

The two high profile cases that were “firsts” really as far as the boom of social media include the Casey Anthony case, the young woman acquitted in her toddler’s death in 2007 and Scott Peterson, who is currently on death row for the death of his wife and unborn son in 2002. Both trials stuck with me, partly because I kept tabs on both trials, especially the Casey Anthony case, where the public had full view of the search for Caylee, the videos of the conversations between family members, and the day to day trial news.

From a legal perspective, these cases are interesting for another reason – both were influenced by social media, even though it was in its infancy at the time. Thinking back to those trials and looking at how impactful social media has (and will) become in court is fascinating.

In the Casey Anthony case, the defense lawyer hired a jury consultant who monitored social media to gauge perception and, more interestingly, help the lawyer as he presented his case. After the trial was over, it came out that the trial consultant actually monitored the online conversation and encouraged Casey’s lawyer to go easier on his questioning of Casey’s father, George. The online sentiment was negative, and showed that the public felt he was being too harsh on the father. The lawyer listened and changed his game plan. According to Amy Singer, the jury consultant, “Social media was the difference between winning and losing.”

Scott Peterson’s case was a bit different. Social media was still very new, and wasn’t likely used as it was in the Casey Anthony trial. However, on recently watching a show that recapped this case, it came out that there is an appeal set to expire at the end of the year. One of the reasons for the appeal? A juror may have lied during voir dire, which they can claim compromised the trial. If the appeal holds, it will be a major event. Personally, I don’t think it will be an issue, but stranger things have happened. Imagine if social media monitoring were prominent back then – this may have been easily uncovered and given the defense one less reason to try to appeal.

So, how has social media evolved since then?

There is a wealth of information that can be taken from social media, and it is being used more and more by investigators, lawyers, and jury consultants. I’d still consider it in its infancy, but I fully expect this will be commonplace across the board in the next three to five years.

In case you’re having a hard time keeping up, here are some ways social media is being used in the legal industry:

Social media background checks/investigations: used as a source of supporting information, there are now pretty in depth social media background checks available to lawyers and investigators. The name is slightly misleading though – while some providers do only focus on social media, most are starting to provide a variety of content from all public facing online sources. These can be used for a lawyer’s client, a defendant or plaintiff, or anyone tied to a case.

Voir dire: In the Scott Peterson case, having a way to run quick online checks during the jury selection process may have uncovered the juror’s past and immediately made her ineligible to serve as a juror. Some states allow for a list of potential jurors to be available prior to voir dire, and others do not. In either case, social media/online research services are available for this purpose.

Jury monitoring: Keeping jurors from posting to online sites during a trial can be a tricky process. They are given the instructions at the onset of the trial, but how can you ensure they are adhering to it? Using social media monitoring of the individuals sitting on the jury can be beneficial, as can geolocating monitoring. Put a fence around the courthouse, a hotel if the jury is sequestered, and and monitor online content being posted throughout the trial.

Witness/evidence content for trial: People now serve as novice journalists – how often do we see a situation unfold and it’s followed by several witness accounts, posts, and videos? This can be cruical information for a trial or case. By utilizing a service that will scan for mentions of the incident as well as location based monitoring that can go back to a recent time when the incident happened, it may allow lawyers and investigators to find & identify witnesses or obtain details/video that will help immensely.

This is still a new technology as far as the legal/investigative industry is concerned, and the “rules of the game” are still being defined and made into law. However, this cannot be overlooked – the content that you may uncover can be the one thing to help win your case.

Lawyers: Don’t Be Sideswiped By Social Media

 

When taking on a new client, one of the first things that is done during the interview/discovery process is asking your client about his/her social media accounts and habits. It’s good to be aware of what they have online, as this can easily be used as evidence if the case goes to trial.

Your new client may or may not be totally forthcoming with this information; your hope is that they disclose as much as possible so you can help them. But what if they’re not completely aware of what’s online about them, either posted by others or an account created years ago that has been long forgotten?

This is where a strong social media background check is needed. Utilizing such a service can help you uncover any public facing online content surrounding an individual or group of individuals. What does a social media background check tell you?

    • A full scope of your client’s social media/online presence – pull any public facing information so you know what’s out there and what may need to be done to “clean up” a social account if necessary
    • Uncover potentially damning information and/or accounts your client has forgotten about that may be relevant to their case
    • If a client’s situation may result in a trial, it’s good to expand the social media background check to those involved in the case, whether it’s witnesses, a plaintiff/defendant, or other key players. The more you know ahead of time, the better prepared you will be.

When thinking about a social media background check, most people automatically think of Facebook, Twitter, Instagram, etc. However, a background check scans all of the internet and can find additional information, such as:

    • Participation in online forums/message boards
    • Blogs or comments written by your client on blogs or in response to online articles
    • Amazon wish lists (if public)
    • News articles/online public notices specific to your client, which may include information about past legal issues
    • Content that other people have posted about your client

Social media can be invaluable when helping a client. It can also lead to surprises you don’t want to find out once it’s too late. Adding a social media background check to your practice can help uncover useful information to best serve your client – after all, who wants to get sideswiped?

 

How to Find Gang Members On Social Media

Or really any group of people, for that matter. But we are using gang members because the McAfee Institute recently shared a great blog post on this topic to highlight not only ways to easily identify and search for people, groups of people/organizations, or a general topic of interest on social media but also (in my opinion) to showcase the fact that this monitoring can be easily done for public facing social content.

If you recall, I wrote a blog post about the ACLU raising concern with social media monitoring tools, stating that they were used racially to monitor people. That appears to be an ongoing situation, but I thought this article was a great way to showcase how public information can be used.
Reading through the article, you’ll see how the author starts with a simple topic search to see what public results are available; in this case, the name of the gang was used. From there, profiles that use that name in their profile come up as a list of results; while some will be private and not accessible, some will be public. This is where the research begins.

It can be time consuming, but in looking at various profiles on Facebook, one can learn quite a bit about the organization of people who belong to it. This can be done through looking at:

Photos: looking for tattoos that are known to identify gang members, hand signals/gestures, or other group identifying features in an individual’s photos.

About: some will publicly display their affiliation, while others will use language that is specific to the gang they belong to. Knowing what to look for can provide helpful clues.

The “More” tab: in this section is where “check ins” and events are noted. You can also see other organizations, groups, or people the individual likes, follows, or participates in.

By taking a look at several profiles, you will likely find common terms used, who tends to participate in events, and even find check in locations that are a common thread among gang members. This can be extremely useful information, and, while tedious, can be used to keep communities safe.