Final GINA Regs Delayed: GINA & Social Media Considerations for Employers

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) makes it illegal to discriminate against employees or applicants because of genetic information. It prohibits using genetic information to make employment decisions, prohibits acquisition of genetic information by employers, and limits disclosure of genetic information by employers. (Harassment and retaliation are also forbidden.)  Title II took effect on November 21, 2009. The proposed regulations were published last year, and the final regulations were initially expected to be published in May of 2010, but publication of the final rule has been delayed.

This leaves employers (and their lawyers) in interpretation-limbo a while longer. With respect to social media issues specifically, GINA makes the mere acquisition of genetic information illegal. Because the Act broadly defines the term “genetic information” (including even medical conditions of family members), checking out an employee’s or applicant’s Facebook profile could easily result in a violation. For example, if an employer found an employee’s status update saying he is raising money for multiple sclerosis in honor of his father who is suffering from it – just getting that information could be a violation.

Some acquisitions of genetic information aren’t illegal; the law provides six exceptions. One of those exceptions is inadvertent acquisition. “Well, I didn’t know I was going to find this information on his profile.” This probably isn’t going to protect employers. If a supervisor or human resources manager intentionally accesses a profile, the information found there isn’t acquired inadvertently. (Depending on the facts, I suppose this could change. If an employee sends a friend request to his supervisor, and weeks later, the employee’s status update appears in the supervisor’s Facebook news feed – there may be a better argument for the inadvertent acquisition defense.)

The better possibility is the exception for “commercially and publicly available information.” The statute identifies newspapers, magazines, periodicals, and books as potential sources of genetic information. The proposed regulation adds to the list information obtained through electronic media (internet, television, and movies). This suggests social media would be exempted – but the EEOC then specifically invited public comment on whether “personal Web sites, or social networking sites” would be a prohibited or exempted source of genetic information. So, it’s still not clear whether social media profiles would fall under the "commercially and publicly available information" exemption. If it doesn’t fall within the scope of this exception, an employer that obtains genetic information by checking an applicant or employee profile would likely be violating GINA.

Of course, even if a social networking profile turns out to be an excepted source of information, employers still must be careful in how they use the information they acquire. As is the case with any other kind of unlawful discrimination, an adverse employment action taken after the employer becomes aware of an employee’s protected status might suggest the employment decision was because of the protected status and not performance.  (Not only true in the context of current employment relationships, but also in the context of hiring.)

Social Media & Hiring Posts Published on New Iowa Employer Law Blog

The Dickinson, Mackaman, Tyler, & Hagen employment and labor law practice group recently launched a new law blog, Iowa Employer Law Blog (iowaemployerlaw.com). The new blog provides general information and insight on legal developments of interest to Iowa employers and other employment law attorneys.

I recently blogged about social media and the hiring process on the Iowa Employer Law Blog. The first post, Social Media and the Hiring Process, Part I:  Benefits & Risks, was published on April 15.  Social Media and the Hiring Process, Part II:  Policy Making was published on April 21.

The Dickinson employment and labor law practice group is one of Iowa's largest and most acclaimed, with nine attorneys, five of whom practice primarily in employment law. The group is also one of only three such practice groups in Iowa to earn a "Band 1" ranking in the Labor and Employment area in the most recent edition of Chambers USA:  America's Leading Lawyers for Business. 

Just in case you haven't noticed via other linking on my blog, one of those Dickinson attorneys who practices primarily in employment law with the firm is yours truly.  (Note that this may be the kind of "material connection" that should be disclosed pursuant to the FTC endorsement guidelines I discussed on May 3, 2010, Potential Employer Liability for Employee Endorsements Under FTC Guidelines.)

New Article: Workplace Consequences of Electronic Exhibitionism and Voyeurism

William A. Herbert, New York State Public Employment Relations Board Deputy Chair, brought to my attention a recent article he authored, “Workplace Consequences of Electronic Exhibitionism and Voyeurism,” which may be downloaded at the Social Science Research Network. A number of authors and commentators have tackled various legal issues related to social media, privacy, and the workplace, but Herbert’s commentary offers a particularly insightful discussion with its special emphasis on the social psychological aspects of the world of Web 2.0. 

"Despite the general reluctance to bare all through old media, new communicative technologies are leading, if not encouraging, individuals to engage in an unprecedented degree of exhibitionism about their personal lives, thoughts and activities to a virtual worldwide audience. Frequently, such communications relate directly or indirectly to work or co-workers and have the potential for causing negative employment consequences." - William A. Herbert in "Workplace Consequences of Electronic Exhibitionism and Voyeurism"

For other posts related to social media and the workplace, click here.

Use of Social Media Before, During, & After Employment Relationship

Check out "Social Media Permeate the Employment Life Cycle" on The National Law Journal web site, discussing why and how employers should address the use of social media before, during, and after the employment relationship of their employees.

Risky (Recruitment) Business? Potential Risks for Employers in Using Social Network Profiles for Candidate Screening

Today, I’m presenting on Web 2.0, social networking, and legal implications in employment at Dickinson, Mackaman, Tyler, & Hagen’s 2009 Employment Law Client Seminar in West Des Moines. As a portion of my segment, I’ll be going over a number of risks employers face when they use social networking sites as part of their hiring or screening process. Potential risks include:

• Incorrect information or information taken out of context. Information in a person’s online profile or “wall” space on Facebook, for example, isn’t always accurate. Neither are assumptions about that information. Keep in mind users sometimes have no control over content others post to their site. Of course, sarcastic comments or inside jokes could easily be taken out of context and misunderstood.

• Reveals information about a candidates’ protected class. Social network profiles include all kinds of protected information: people often list religious beliefs, age, race, gender, sexual orientation (protected in Iowa!), military status, and so on in profile information, for example. It’s risky for employers to get access to this information they wouldn’t otherwise ask about during the hiring process – and information upon which they can’t base hiring decisions. Once an employer sees this stuff, they can’t “un-see” it! Employers may find themselves having to prove a decision to refuse a candidate wasn’t influenced by the information online.

• Invasion of privacy. Depending on the circumstances, checking online profiles could lead to an invasion of privacy claim under various federal or state laws.

• Off-duty conduct discrimination. Some states have laws prohibiting discrimination based on off-duty conduct. If an employer has employees in states with such laws, it could really limit the employer’s ability to use social networking sites as part of the screening process.

• Fair credit reporting laws. If employers use an outside agency to conduct background checks on candidates, they may need to follow consent and disclosure requirements of fair credit reporting laws. The federal Fair Credit Reporting Act is one such law, and states sometimes have similar statutes.

Of course, some might argue employers have a duty to check public profiles available through social networking sites that are freely accessible to minimize risks of later negligent hiring claims. Employers do have a duty to consider all reasonably available information in making hiring decisions, and failure to check online profiles could arguably support a future negligent hiring claim.

Employers should carefully weigh risks and benefits of incorporating social networking checks into its screening process. If employers plan to use social networks as part of their vetting of candidates, they should consider working with counsel in developing an internal policy to govern the process.