Opening the Door to Facebook: Severe Emotional Distress May be the Key

A well reasoned opinion by Magistrate Judge Debra McVicker Lynch of the Southern District of Indiana dealing with a request for information from what she dubs Social Networking Sites (SNS) should be a starting point for anyone who is seeking (or opposing) information from an employment law plaintiff's facebook or myspace profile. The 13 page decision in EEOC v. Simply Storage Management that was issued on May 11, 2010 is a textbook example of what a good discovery ruling should be.

Regardless of whether you agree or disagree with how she decided, there is no doubting that the Judge understood the dispute, did not seem irritated by it, balanced the defendant's legitimate need for discovery and plaintiff's right to privacy, within the context of a premise of broad discovery and drew limits. Even better, she noted that the limits themselves might need further interpretation and provided some additional guidance.

Here's how the suit started according to the EEOC press release last October.

The discovery dispute arose when defendants requested Facebook and MySpace profiles, plus related communications and photos and videos, of two individuals on whose behalf the EEOC brought the sexual harassment claim.
The heart of the Court's ruling was as follows:

the court determines that the appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for claimants .... for the period from April 23, 2007, through the present that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

Additionally the Court held that third party communications to the claimants should be produced if "they place these claimants’ own communications in context."

With respect to videos and photographs, the Court applied the same test but gave more direction:

For example, pictures of the claimant taken during the relevant time period and posted on a claimant’s profile will generally be discoverable because the context of the picture and the claimant’s appearance may reveal the claimant’s emotional or mental status. On the other hand, a picture posted on a third party’s profile in which a claimant is merely “tagged,” is less likely to be relevant. In general, a picture or video depicting someone other than the claimant is unlikely to fall within the definition set out above.

A few other points (but you really should read the whole opinion):

• Judge Lynch was quick to emphasize the limits of the Order, "This Order is directed toward two claimants who have alleged severe emotional distress, including post-traumatic stress disorder; it does not address the proper scope of discovery for “garden variety emotional distress claims.”
• Although not explained, in connection with photos and videos the use of the verb "taken" during the applicable time frame stood out, although later the court did refer to "posted" in the context of third party pictures;
• Although noting that the precision was not as precise as the lawyers might like, the Court also added that the EEOC should err on the side of production.
• There was no mention of the additional dimension in this case. Because it was brought by the EEOC, it is possible that the claimants whose information is now being discovered might in fact be unwilling to sacrifice their privacy for the right to keep the suit alive. Given how carefully crafted the opinion is, I have no doubts if that were an issue (or at least if the Court were aware that it was an issue) it would have been addressed.
• It is clear that Judge Lynch is much more comfortable with the internet world than those who currently sit at the top of her chain of command, see Sexting Case Befuddles Supreme Court: 'What's The Difference Between Email And A Pager?' and also
• Unlike some on the Supreme Court she has no qualms about seeking assistance from jurisdictions out of United States as she discusses two Canadian decisions dealing with the same issue.

The case has already received considerable comment. My hat tip for catching it is Jon Hyman's post at The Ohio Employer's Law Blog, but following his hat tip leads to others, including some by non-lawyer bloggers:

• Facebook can be used against you in court, by Robert Iafolla;
• Social Network Discovery and Discovery Regarding Past Employers, by Robert Fitzpatrick which covers the 2nd part of Judge Lynch's ruling about employment records from past employers (basically not automatically discoverable, must show some particular relevance);
• Court Rules Facebook Is Fair Game in Discovery, from the Baker & Daniels law firm; and
• Employers beware: Social network comments can be used in court by Cath Everett writing at the HR Zone.

Social Media and Hiring -- Interesting Data, But So What?

Jon Hyman at Ohio Employer's Law Blog has a great post on a recent survey conducted for Microsoft on how employers world wide are using internet research in making hiring decisions, 70% of hiring managers report rejecting candidates following internet searches.

A detailed powerpoint has the January 2010 report prepared by Cross-Tab Marketing Services for a Microsoft division. 

The points from the Executive Summary of impact on professional life are fairly telling (my comments in red):

• Nationality plays key role in determining whether online content will harm reputations.  
• It's not clear if this is the nationality of the manager (which it could be given the global nature of the study) or the candidate. Obviously, if it is the latter, it is a huge red flag from an employment law standpoint.
• Companies have formal policies for checking online reputational data, but male recruiters are more likely to check - except in France. 
• I would be curious if those formal processes meant written. The 75% number of U.S. employers that said it was "part of their organizational process" sounds high to me. And what is it about males? Or the French for that matter.
• Recruiters typically conduct deeper searches than most consumers are aware of, and feel justified in doing so.
• Hiring may be the most important decision that a company makes and so it does not surprise me that employers want to know as much information as they can about potential employees. Hiring is important not only to the general success of a company, but is also an important factor in mitigating employment law litigation.  I think most experienced management side employment lawyers will agree that most "wrongful termination" cases are really cases of "bad hiring."
• Not all online content is true – but candidates may be rejected nonetheless.
•  I certainly don't doubt the former, nor really the latter, but when you look at the reasons that such data leads to rejection (see below) I am not sure the two are necessarily connected. Still, any time an employer is acting on false information it is not good.
• Recruiters say they tell candidates if online content factored into their rejection, but consumers do not seem to be hearing it.
• I would be surprised if is a very clear message.
• Good online reputations matter to recruiters.
• Duh! (although I would not have answered that way a year ago.)

There are also big differences in the use of such data. Worldwide 25% of recruiters do such checks "all the time", in the U.S. the "all the time" number is 44%, with 70% having rejected a candidate based on such a check compared to 14% for the French.

One interesting thing is the wide variety of sites that U.S. recruiters report they are checking:

• Search engines (78%)
• Virtual worlds sites (32%)
• Online gaming sites (27%)
• Classifieds/Auction sites (25%)
• Social networking sites (63%)
• Personal websites (48%)
• Photo/video sharing websites (59%)
• Blogs (46%)
• Online forums/communities (34%)
• News sharing sites (41%)

And probably the most important set of  U.S. data from an employment law standpoint,  reasons for rejection:

• Inappropriate comments/text written by the candidate (56%)
• Unsuitable photos/videos/information (55%)
• Concerns about the candidate's lifestyle (58%)
• Comments criticizing previous employers/co-workers/clients (40%)
• Inappropriate comments/text written by friends/relatives (43%)
• Inappropriate comments/text written by colleagues/work acquaintances (40%)
• Groups/Networks the candidate was a member of (35%)
• Discovered that information the candidate shared was false (30%)
• Poor communication skills displayed online (27%)
• Concern about the candidates financial background (16%)

Jon quotes himself to make a good point about the use of this data:

I have another problem with HR departments willy-nilly performing internet searches on job applicants – the risk that such a search will disclose protected information such as age, sex, race, or medical information.

I think that is a legitimate concern. I also think it may work against hiring activists or what Tom Peters calls "mavericks" in his latest book, The Little Big Things," which at least he would say is a bad thing.

A couple of other points on a post that is now way too long. If ENDA passes, which would extend anti-discrimination protection to sexual orientation, I think the searches could be even more problematic.

Still to answer the question I posed in the headline, so what?

I think this data should be a very big deal to those seeking work.

For employers? This may change, but the fact is, in my now 35 years of doing this, I can probably count the number of cases that I have handled based on failure to hire on the fingers of my two hands and it certainly would not exceed my fingers and toes.

Still just because it has been that way in the past doesn't mean it will in the future, and you can be sure data like this will be making for some interesting inquiries at depositions in the future.