Does a candidate’s social media profile help or harm the candidate’s chances of landing a job? According to a recent survey by CareerBuilder, it is, perhaps not surprisingly, more likely that a candidate’s social media activity will have a negative, rather than a positive impact, although that’s not always the case.
According to the survey, 39% of companies use social media sites to research job applicants. Of those, 43% said they have found information that caused them not to hire someone, while only 19% said they had found something that positively impacted hiring decision.
What makes the difference? The top reasons for not hiring a candidate based on their social media profile include some of the “usual suspects.” Fifty percent of those who decided not to hire someone based on the individual’s social media profile did so because the candidate “posted provocative/inappropriate photos/info.” 48% discovered information showing the candidate drinking alcohol or using drugs, and 28% reported finding the candidate had made discriminatory comments relating to race, gender, religion, and other protected classes. Additionally, 33% found that the candidate had bad-mouthed a previous employer.
And what might make a positive impact? The survey found that hiring managers who found something positive on a candidate’s social media profile that caused them to hire the candidate included things like the candidate demonstrating a “professional image,” “great communication skills,” “creativ[ity]” and similar items.
The survey includes some interesting data on the impact a job applicant’s social media profile can have on hiring decisions. What would also be interesting to know is how many employers who are using social media to vet job applicants are taking precautionary measures to make sure that protected information (like race, sex, age, disability, pregnancy, religion, etc.) is not clouding their judgment.
Are you using social media to vet job applicants? Have you found that doing so has a positive or negative impact on your hiring decisions?
We have written on a few occasions about how courts have viewed discoverability of social media posts and what might be a reasonable request for information contained on a social media site (see e.g. Can the Court Force You to Turn Over Your Facebook Account? The Short Answer. Yes). The Federal District Court, Northern District of Georgia, recently issued an interesting decision on this issue and it is worth a deeper dive.
Jewell v. Aaron’s, Inc., Case 1:12-cv-00563-AT (N. Dist. Ga, July 19, 2013), is a class action lawsuit involving claims that the defendant failed to provide breaks to its employees. The defendant requested social media posts from the opt-in plaintiffs, and the plaintiffs had refused to produce them. The request was laid out as follows:
Request for Production No. 4: All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, Linkedln, Twitter, or a blog from 2009 to the present during your working hours at an Aaron’s store.
The defendant made the Request because it had received an anonymous tip that the named Plaintiff often made posts on Facebook during work hours. The discovery request was designed to find out whether and/or how many of the sample opt-in plaintiffs engaged in similar conduct.
The defendant provided the following rationale for its request:
[g]iven the prevalence of social media today and the ability to post on personal social media accounts and blogs from personal smart phones, it is likely that many of the opt-in plaintiffs have made posts … Some of the posts may directly show that the poster was taking a lunch break at the time. The date and time stamp of other posts may indicate that the poster spent a chunk of 30 minutes or more during the work day engaged in a series of successive personal posts such that there is a 30 minute period of that opt-in plaintiff’s work day that, regardless of whether the opt-in plaintiff actually ate a meal, is appropriately excluded from the compensable time of that opt-in plaintiff.
This seems like a fairly tailored request. It also appears that the defendant articulated a reasonable rationale for seeking the information given the known use of social media by employees during the work day. The plaintiffs, however, argued the Request was overly burdensome and that it would take 1,323 hours to 26,462 hours to locate and produce the information from the 87 opt-in Plaintiffs’ social media sites.
On review, the Court attempted to verify the accuracy of Plaintiffs’ assertions that it would take so much time and discovered a Facebook feature which permits users to “download Facebook data, including “timeline” information, “wall” postings, activity log, messages, and photographs” directly from Facebook. Following the download, the user can view all posts/activity in a single document in chronological order with a date/time stamp.
Seems like a pretty simply process – but the Court disagreed and refused to compel production of the social media posts. Given the Court’s analysis about the ability to download data from Facebook, I decided to investigate a little further myself to see how easy or difficult this process might be. I accessed my Facebook account, found the link to “download” my data and obtain an archive of my information. I started and completed the process in less than three minutes. Facebook is archiving my data as I write. As a result, I have to question Plaintiffs’ counsel’s assertions that it would take between 1,323 hours and 26,462 hours to download, review and produce the Facebook posts from only 87 people. I admit, however, that I have yet to receive an email notification that my archived data is available – so we will see.
That said, this Facebook feature should make it easier for litigants to gather and produce relevant information from Facebook, and might also decrease discovery costs – should other courts take a different view about the relevance of the data, and the ease with which the data can be collected. I can certainly see this issue coming up in employment litigation on a fairly regular basis, so we will keep our eyes open for other decisions on these issues.
Have you had an experience with production of social media posts? If so, we welcome your input!
In a recent post, Should Healthcare Professionals Sue to Protect Their Online Reputations?, we discussed several cases where physicians have sued over posts made in an online forum. Legal challenges to negative reviews have had mixed results. Remember David McKee, M.D. – one of the doctors we discussed in our last post who sued a patient’s son over his online posts. The negative online reviews were posted in the spring of 2010, but the Minnesota Supreme Court did not rule until January 2013 that the statements were not defamatory, and thus, his claims had been properly dismissed.
So – what other options are there? Some suggest that health care professionals should embrace online reviews. The Center for Quality of Care Research in 2010 conducted a survey of 33 physician-rating websites which rated 81 physicians. Of the 190 reviews surveyed, 88% were positive, 6% negative and 6% were neutral. Similarly, Tom Seery of Realself.com, an online review and comment board for cosmetic treatments, found that 90% of the patient reviews on Realself.com were positive, with a small mix of negative reviews and a smaller number of mixed reviews. Dr. Steve Feldman, a practicing dermatologist, professor of dermatology, pathology and public health sciences at Wake Forest University, and founder of a doctor rating site, Drscore.com, could not agree more. Dr. Feldman told Physicianspractice.com, Do Online Ratings Matter?, “[t]hese Web sites are actually one of the best things ever to happen to American Medicine.” Dr. Feldman believes medical rating sites give satisfied patients an avenue to describe in positive terms the care and treatment they received. Indeed, the median score of a doctor with 20 or more reviews on Drscore.com is 9.3 out of 10. “Patients love their doctors,” says Dr. Feldman. “It’s amazing how good doctors are in the United States and no one knows it.”
I would agree with Dr. Feldman that social media provides patients the ability to praise their doctors, and that the praise might help boost their physician’s practice. But what about the nearly 10 % of negative reviews – can and should a doctor respond in an online forum? Physicians should first look at the content of many of those negative reviews. According to doctoredreveiws.com, How to Respond, the most common patient complaints relate to the physician’s business practices, such as parking, wait times and staff attitude. This is information that many practices would welcome and take steps to correct! This kind of review may also provide the practice the opportunity to respond and let the reading public know that the practice will listen to patient complaints and take affirmative action to improve the quality of the patient’s experience.
That said, it is usually the online posts about direct patient care that causes concern among health care providers. Yet, in those instances where the negative criticism relates directly to patient care, and thus, implicates a patient’s privacy, the health care professional must step back to determine whether an online response is necessary and appropriate, or perhaps whether reaching out to the patient is the best bet. While the online site may require the reviewer to waive privacy constraints prior to posting the review, this might not insulate the physician. We recommend contacting legal counsel to insure that such a responsive post would not violate either state or federal patient privacy laws. If a negative review persists, the clinic or doctor might try contacting the patient directly - asking about how the concern can be remedied and ultimately whether the patient will take the negative review down. A final option might be to contact the review site. The review site might refuse to take the post down, but if the information is clearly false, inflammatory or appears to be for the purpose of harassment, the review site might respond to a plea to remove the post (although they don’t have to do so).
So can a health care professional take charge of his/her online presence? Dr. Kevin Pho, a New Hampshire internist and writer of a physician-focused blog on health and social media called KevinMD.com, believes legal action is the wrong approach in curbing negative online reviews. “In general, I can’t think of a time where a lawsuit would be tremendously effective. The negative publicity and the fallout from the lawsuit is far worse than the initial issue,” Dr. Pho reported to American Medical News, Doctors’ legal remedies can defeat online attacks. “It’s a better idea to take charge of your online presence.”
For instance, Dr. Pho believes physicians should join social networking sites, such as Facebook, LinkedIn, and also participate in community health boards, blogs and chat rooms. According to Dr. Pho, a physician’s online efforts will show-up first during a Google search of his/her name, thereby pushing any negative reviews down the list. This is certainly how many industries increase social media presence, so it seems reasonable for health care professionals to do so as well. Although I would add a caution that health care professionals should exercise extreme care when interacting with patients in an online setting (think patient privacy).
So what is the right answer? In the end the best bet may be to do nothing – at least as it relates to online criticism. As I advise clients in other industries – get a thick skin and don’t respond to criticism unless really necessary. If a response is appropriate, consider reaching out to the patient directly. Perhaps this is a little old-fashioned, but direct communication can resolve disputes better than online barbs. Finally, if you are a health care professional, take an active role in your online reputation to increase the number of positive “hits” the public might find about you or your practice. If any of you have other ideas for health care professionals, please contribute your thoughts.
Today we’re bringing you the last of our Fredrikson & Byron Summer Associate guest posts, this time by Summer Associate, Matthew L. Stortz*. Thanks, Matt for the post!
Corporate Board Member recently reported select findings from its annual “Law in the Boardroom Study.” The Report indicates that corporate directors and general counsel expect cyber risk to be among their most pressing concerns this year. According to the Report, 28% of corporate directors and 27% of general counsel anticipate that they will spend time on “cyber risk oversight” in 2013. Interestingly, corporate directors list only “executive compensation” and “M&A preparedness” ahead of cyber risk as areas of corporate board attention.
The entire Report is worth reading, but three particularly noteworthy themes emerge:
1. One Size Does Not Fit All. Even as cyber risk becomes a greater concern across the board (no pun intended), the magnitude of cyber risk differs among companies. While the Report cites a 2012 Ponemon Institute study to support its statement that “[t]he average annualized cost of cyber crime [was] . . . $8.9 million in 2012,” in my opinion, that figure overstates the magnitude of cyber risk for some companies and understates the threat for other companies. Not all companies are similarly situated where cyber risk is concerned. As the Report itself notes, companies doing business “in high-tech, pharma, and certain government contractor segments” face elevated cyber risk. By contrast, cyber risk may pose less of a threat to companies for which data security is less crucial. For example, the Coca-Cola Company and the neighborhood lemonade stand may both rely upon secret recipes, but the kids running the lemonade stand aren’t likely to be concerned about cyber risk. As companies consider how best to anticipate, manage, and respond to cyber risk, they should assess the nature and level of cyber risk particular to their business.
2. Potentially Overconfident. Corporate directors and general counsel expect to address cyber risk in 2013, but, according to the Report, most appear to be at least moderately satisfied with the steps their companies have already taken to mitigate cyber risk. The Report indicates that 85% of directors are “very confident” (22%) or “somewhat confident” (63%) that their companies could “quickly detect a cyber breach and determine whether confidential data was compromised.” Only 14% of directors surveyed are “not confident” that their companies could do the same. General counsel surveyed were similarly confident. I wonder, however, whether this confidence matches up with reality. Do these companies, for example, have real policies, procedures, and infrastructure in place to provide adequate protection? Given the almost daily news headlines relating to cyber attacks, data breaches and trade secret theft, it may be that some of this confidence is misplaced.
3. Help Wanted. Despite their apparent confidence in the cyber risk management measures they have already implemented, the corporate directors and general counsel surveyed agreed that they could be better informed about certain cyber risk issues. According to the Report, “Directors  feel that IT strategy/risk is a key area that they need more information on, while general counsel feel the same about e-discovery and data management.” Identifying information gaps is a good first step. The next step is to fill in those gaps and start to build a system and culture of risk management and data protection.
How do the Report’s findings compare with your company’s attitudes and concerns regarding cyber risk? Are you confident that your company’s existing cyber risk management measures are adequate? Have you considered what measures your company might adopt to better assess and manage cyber risk?
*Matthew L. Stortz is a rising third year law student at Boston University School of Law. Matt’s legal interests include nearly everything at the intersection of law and business.
We are excited to bring you another guest post this week by one of Fredrikson & Byron’s Summer Associates, David Coyle. Thanks, David, for the post!
In a recent case out of the Fifth Circuit, the court held that the information contained in a text message was not sufficient to put an employer on notice that an employee was requesting leave under the Family and Medical Leave Act (FMLA).
The employee in this case worked as a business analyst at University of Texas Southwestern, and was responsible for maintaining the information systems at the University’s hospitals. This entailed being on a 24-hour, on-call rotation approximately every twelve weeks. The employee’s father had a heart attack and was in the emergency room. Instead of calling her supervisor, the employee simply sent a text message informing her supervisor that she would not be able to be on call that night because her father was in the emergency room. While the supervisor was able to find someone to cover the employee’s shift that night, the employee was unavailable during her make-up rotation. After a meeting with her supervisor the next day, the employee left work without the equipment she needed to perform her work duties. Shortly thereafter, the employer discharged the employee.
The employee filed suit, claiming that the employer interfered with her right to take leave under the FMLA. In making her case for interference under the FMLA, the employee argued that her supervisor had a duty to make further inquiries after he received her text message because he knew that her father was in poor health and was having breathing problems. The Fifth Circuit was not persuaded. The court noted that while “an employee need not use the phrase ‘FMLA leave,’ she must give notice that is sufficient to reasonably apprise her employer that her request to take time off could fall under the FMLA.” In addition, the court noted that “[a]n employer may have a duty to inquire further if statements made by the employee warrant it, but ‘the employer is not required to be a clairvoyant.’” Texting your supervisor that you can’t come into work because your father is in the emergency room – at least in this case – is not enough to put the employer on notice that the employee was asking for FMLA leave.
On the other hand, if the employee had picked up the phone and talked with her supervisor directly, this case may have been different. In that situation, the supervisor could have asked the type of follow up questions that would have elicited enough information for the supervisor to have determined whether the employee was asking for FMLA leave.
So, even though texting a supervisor wasn’t enough in this case to put the employer on notice of a need for FMLA leave, it was enough to spark litigation that made it all the way to the Fifth Circuit Court of Appeals. From a litigation prevention perspective, perhaps the employer should have considered informing employees that notification of absences via text message is not permitted and instead employees must speak directly to their supervisors. And, of course, training supervisors to be able to recognize those borderline situations when an employee just may be giving enough notice to trigger the employer’s obligations under the FMLA is always a good idea.
What do your policies with regard to notification of absences say? And are your employees following those policies?
*David Coyle, a native of Minneapolis, MN, is a rising third-year law student at Emory University in Atlanta. His legal interests include complex litigation, antitrust, real estate litigation, and constitutional law.
Starting this week, we are very pleased to share with our readers a series of guest posts by three of Fredrikson & Byron’s talented summer associates. Here is the first guest post, by summer associate, Chad Ambroday.* Thanks, Chad, for the post!
In a recent Facebook firing case, the employer, SkinSmart Dermatology, discharged an employee after she dared her supervisors to fire her in a Facebook group message. The employee, along with nine other current and former coworkers, initially created the forum to plan a social event. Only the ten individuals invited to the group could view the conversation. The first hour of their conversation focused on planning the event, but their exchange then digressed into banter about the workplace.
The employee boasted about one interaction in which she told a supervisor to “back the freak off.” A few minutes later, the employee heightened the degree of criticism, stating that her supervisors “are full of sh** . . . They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F*** . . . FIRE ME . . . Make my day . . . .”
The conversation fizzled out as nobody responded to the employee’s comments. The only contribution came approximately two hours later after the employee stated that there was no one left in the group message to entertain her. A current coworker replied that she made the employee laugh and then mentioned that “it’s getting bad there [at the Employer’s workplace], it’s just annoying as hell. It’s always some dumb sh** going on.” The conversation ended shortly thereafter.
The next morning, as happens so often in these cases, a coworker showed the message string to a supervisor. The clinic fired the employee, citing doubts about her commitment to her job and concerns about her interactions with patients as the basis for her termination.
The employee then brought an unfair labor practice charge, alleging that her Facebook posts constituted protected concerted activity under Section 7 of the National Labor Relations Act. The case was submitted to the Office of the General Counsel, which found that the Facebook posts were not protected concerted activity because the employee’s statements merely reflected her individual contempt for the workplace and no other coworkers joined in the criticism.
While we were happy to see that the employee in this case was not able to use the National Labor Relations Act as a shield behind which the employee could freely denigrate her supervisor, the case raised a larger, more practical question – were the posts really so bad that it was worth having to defend against an unfair labor practice charge? The only individuals who could see the posts were the ten individuals who were invited to the group and no one responded. Perhaps the employer should have gotten a thicker skin. Hard to say.
If an employee brought these posts to your attention, what would you do?
*Chad Ambroday is a rising third-year law student at the University of Arizona. Both he and his wife, Autumn, were born on the Leech Lake Reservation in northern Minnesota. They have a seven-month old son, Arlo, who rules their household.
In a past post, Internet Defamation Claims on the Rise as Online Reviews Impact the Bottom Line, we discussed web-based rating services and the rise of internet defamation claims. Internet reviews are rampant in the healthcare industry, and medical professionals are often the subject of online reviews as patients share positive and negative feedback about care and treatment. Some individuals are permitted to respond to online criticism, however, medical professionals may be constrained by ethical obligations and federal privacy laws to not reveal patient information. So what can or should a doctor do – sue for defamation, ignore social media altogether, or actively manage their online reputation? I guess that depending upon the circumstance – it may be one or all three practices. We will be discussing these options in the next few posts.
As to whether to take legal action, the Minnesota Supreme Court has weighed in on one such internet defamation case by a physician against a patient’s son. In David McKee, M.D., vs. Dennis Laurion, the Supreme Court concluded that none of the statements posted online by the patient’s son, Laurion, regarding Dr. McKee’s care amounted to defamation. The court dismissed the defamation lawsuit – that is Dr. McKee gained nothing from bringing the legal action. So what were the allegedly defamatory statements?
Following Dr. McKee’s examination of his father, Dennis Laurion posted the following statements on various “rate-your-doctor” websites:
1. Dr. McKee said he had to “spend time finding out if you [Kenneth Laurion] were transferred or died.”
2. Dr.McKee said, “44% of hemorrhagic strokes die within 30 days. I guess this is the better option.”
3. Dr. McKee said, “Therapist? You [Kenneth Laurion] don’t need therapy.”
4. Dr. McKee said, “[I]t doesn’t matter” that the patient’s gown did not cover his backside.
5. Dr. McKee strode out of the room without talking to the patient’s family.
6. A nurse, not affiliated with the examination of Kenneth Laurion, told Dennis Laurion that Dr. McKee was a “real tool.”
In Statements 1, 2 and 4, the Supreme Court held the statements were essentially true – that is, they were so close to what Dr. McKee admitted he said that any “minor inaccuracies” could not satisfy the falsity element of defamation. Truth is a defense to defamation.
In Statements 3 and 5, the Court found that nothing published by Dennis Laurion actually lowered Dr. McKee’s reputation in the community. The statements were, therefore, harmless and not capable of conveying any defamatory meaning. Finally, with respect to Statement 6, whether Dr. McKee is a “real tool”, the Supreme Court concluded this statement, whether by Laurion or someone else, amounted to an opinion – a statement that cannot be reasonably interpreted as stating a fact, or a statement that cannot be proved true or false (also a defense to a defamation claim). The Minnesota Supreme Court referred to the “real tool” statement as mere name calling with no real intent to defame anyone.
In other jurisdictions, it has been a mixed bag of success for internet defamation claims. An Arizona cosmetic surgeon won a $12 million internet defamation suit against a former disgruntled patient. As a result of the three year legal battle, Dr. Albert Carlotti III, suffered deteriorating health, lost hundreds of patients from his practice, and was forced to sell his home. “I was dealing with somebody who had the intent on destroying us professionally, personally and on every level.” Dr. Carlotti told American Medical News, Doctors win redress in online defamation suits. “I went from a very successful surgeon to pretty much out of business.” The disgruntled patient created her own website and claimed Dr. Carlotti was not board-certified and under state investigation. The patient also obtained the telephone numbers for the doctor’s patients, called them, and asserted the same allegations. Records, however, revealed that Dr. Carlotti had received no disciplinary action and was certified by the American Board of Oral and Maxillofacial Surgery.
When talking to American Medical News, Dr. Carlotti’s attorney applauded the verdict noting “[a] lot of physicians and professionals feel constrained by their professional obligation to keep quiet. This gives them hope that there is a change in attitude over what will be protected by the First Amendment.” Dr. Carlotti could not agree more – “It’s amazing what one person with some basic computer skills can do.” “As I stand here in the ashes of my victory, the focus is on how I rebuild and how low is it going to take?”
Bottom line – whether a defamation claim is successful or not, there is no question that online reviews can impact how the public views the care provided by medical professionals. We will evaluate other options for healthcare professionals when responding to negative reviews in the next post.
If an individual medical professional or a medical clinic is unsure whether an online review amounts to defamation, seeking legal guidance can help. What are your thoughts? Should there be limits to what a patient can post online? As always, we welcome your input.
Many companies have increased their attention to prevention of theft of trade secrets, as well as the prevention of many other kinds of data loss these days. Indeed, in February 2013, the White House released its Strategy for combating the theft of trade secrets in the United States. Kicking off the report, President Obama stated:
“We are going to aggressively protect our intellectual property. Our single greatest asset is the innovation and the ingenuity and creativity of the American people. It is essential to our prosperity and it will only become more so in this century.”
Part of the Administration’s strategy focused on enhancing domestic law enforcement’s ability to combat theft of trade secrets and improving domestic legislation, such as the Economic Espionage Act of 1996, 18 U.S.C. §§1831-1839. (For a good discussion of the Administration’s Strategy report, see my colleague Emily Duke’s article, Administration Releases Strategy to Prevent Theft of U.S. Trade Secrets).
Most companies who depend upon the ability to protect their trade secrets to maintain a competitive edge in the market are watching closely to see what happens now. A Criminal Complaint issued on June 4, 2013, in the United States District Court, for the District of New Jersey, against a former employee of Becton, Dickinson & Company (“BD”) certainly demonstrates that law enforcement is taking theft of trade secrets seriously.
In United States of America v. Ketankumar Maniar, the government alleges that Maniar (the former BD employee) had access to BD’s trade secret information and that while still employed took actions to steal that trade secret information. The Complaint further alleges that Maniar took the information in many different ways including, downloading close to 8,000 BD files containing BD trade secret information to multiple external hard drives and thumb drives and emailing BD trade secret information to his personal email account. Apparently, there is evidence that Maniar was planning to take the BD trade secret information with him to India – although that action has been thwarted by his arrest.
In addition to the former employee’s actions relating to how he took information, what might also be of interest to our readers is the focus by the government on the steps BD had taken to protect its trade secret information. The government focused on the following:
- BD had a Code of Conduct that addressed protection of trade secret information which Maniar had signed off on and acknowledged was a condition of his employment with BD.
- BD required that Maniar sign an Employee Agreement which acknowledged his obligation to protect trade secret information.
- BD maintained a Trade Secret Protection Policy that was incorporated into the Employee Agreement.
- BD maintained physical and electronic security of its trade secret information, including, with limited or restricted access to certain information.
- BD conducted training to remind employees of their responsibilities to protect trade secret information.
This case serves as a reminder that taking affirmative steps to protect trade secret assets will provide a greater opportunity in either a civil or criminal context to obtain relief from the legal system. It also serves as a reminder that companies should be mindful that some employees will disregard their obligations to the company and take information to benefit themselves or others. We have been advising clients, as well as writing, about this for years (See e.g. Recent Survey Shows That Employee Theft of Confidential Information is Rampant). Technology certainly makes it easier for employees to walk out the door with confidential information. When in doubt about what to do – contact your legal counsel, or one of the lawyers in our Trade Secret group.
In the meantime, we will keep on eye on what is happening. As always, we welcome your input.
(*Monopoly is a trademark of Hasbro)
While our post today from our colleague, Ingrid Culp, is on a topic we don’t typically cover, it’s important for businesses with Minnesota employees to know about this new law. Thanks, Ingrid for this post!
On May 13, 2013, Minnesota Governor Mark Dayton signed a new law prohibiting Minnesota’s private employers from inquiring into, considering or requiring an applicant for employment to disclose his/her criminal history (1) until after the applicant has been selected for an interview or (2) if there is no interview, until after a conditional offer of employment has been made to the applicant. Minn. Stat. § 364.021.
Most public (governmental) employers have been subject to this requirement for some time. This new law takes effect January 1, 2014, for private (non-governmental) employers and is in keeping with Minnesota’s long stated public policy of encouraging and contributing to criminal offenders’ rehabilitation and return to the workforce. The new law includes some exceptions allowing for earlier inquiry into an applicant’s criminal history, including for employers who have a statutory duty to conduct a criminal background check or otherwise take into consideration an applicant’s criminal history during the hiring process.
If your company is like most, this new law will render your current employment application and/or hiring process unlawful. The new law means most Minnesota employers must remove all questions or “check-the-box” inquiries regarding an applicant’s criminal history from their employment applications. The law provides that an employer may, however, include a notice on its employment application that the company’s policy is to require applicants to disclose criminal history if selected for an interview, or if there is no interview, after a conditional offer of employment has been made, and may make employment decisions on this basis depending on the nature of the applicant’s criminal history and the position sought. It is possible such a notice will deter applicants with a criminal history from applying for employment, presumably saving the employer some time and resources in its hiring process.
Under the new law, if an employer wishes to ask applicants about criminal history after an interview has been granted, the employer should create a written communication to applicants confirming that an interview has been requested and making such inquiry with instructions for how to respond. If an offer of employment will be made without an interview, the employer should include language in the offer letter stating that the offer is conditioned on the applicant’s response to the employer’s inquiry as to criminal history, and include such inquiry with instructions for how to respond.
As has been the case for some time, we recommend that any such inquiry, whether coupled with an invitation for an interview or a conditional offer of employment, be uniformly applied company-wide (or for designated positions), be limited to convictions, and include a disclaimer that a conviction will not necessarily disqualify the applicant from employment. In addition, we continue to recommend that employers consider applicants’ criminal histories in conformance with the Equal Employment Opportunity Commission’s recent guidance on the topic. For more information on this issue, please see Anne Radolinski’s article, Arrest and Conviction Records - A Fresh Look.
For a review of how this new law affects your company’s application for employment, offer letter or hiring practices, please contact an attorney in Fredrikson & Byron’s Employment & Labor Law Group.
“Big Data” means different things to different people. In a March 7th, speech, Virginia Rometty, Chairman, President and CEO of IBM, provided her take on “Big Data” and I thought she relayed a number of interesting points. Her speech, entitled Competitive Advantage in the Era of Smart, describes a new way for private and public organizations to compete in an era of “Big Data” – data in the clouds, data on smart mobile devices and social networks, and corporations mining data for insights and the competitive edge. To her, “Big Data” is the next natural resource, like oil or electricity, to propel this country forward as everyone will have access to cloud infrastructures, mobile devices and social networks.
Ms. Rometty suggests three “principles of change” – change, not just in technology, but in an evolution of an organization – a cultural way of thinking and acting. All organizations make decisions about capital, people, products and services; create value for those individuals and entitles; and deliver value to its customers. Ms. Rometty laid her principles of evolution out as:
- Decisions will be based not on “gut instinct,” but on predictive analytics;
- The social network is the new production line; and
- Value will be created not for “market segments” or demographics, but for individuals.
Let’s look at each principal enunciated by Ms. Rometty.
Principle 1: Decisions will be based not on “gut instinct,” but on predictive analytics
In today’s global community, Ms. Rometty believes that enterprises should move to an analytical decision making model. Why is that? Because every two days we generate the equivalent of all of the data produced up to 2003. With the volume of this data and today’s raw computing power organizations can and should harness this duality to produce accurate and insightful knowledge-based decisions.
Ms. Rometty believes that organizations must use analytical decision-making models to reduce errors, and inadvertent or damaging outcomes. As proof, she pointed first to a global survey of top risk managers that identified the #1 method for identifying and assessing risk – senior management intuition and experience. And second, to the greatest recession of our lifetime –which many believe was caused by an inability to see and manage risk. To illustrate her point, Ms. Rometty cautioned that many of our decisions are subconsciously influenced by our biases – relying too heavily on a single piece of information we have internalized. For example, a doctor hears a patient disclose two or three symptoms out of many, and then makes a diagnosis while discounting those symptoms that do not fit into her predetermined category. The key point to this analytical decisions making model is that:
“[t]his isn’t just a change in tools. It’s a change in mindset and organizational culture. Which is also the greatest challenge it poses: the need to “unlearn” deeply engrained professional and leadership assumptions: . . . How you manage enterprise risk . . . and how you manage an enterprise.
Ms. Rometty believes the mentality will be not just to learn new skills, but to learn a whole new job. So will we be willing to do that? And how quickly can such predictive analysis be created? Will executives be willing and able to wait for that analysis – I personally don’t think we are there yet. It certainly seems that we all are relying upon gut instinct every day…this would certainly be a hard thing for me to overcome.
Principle 2: The social network is the new production line.
Create intellectual capital! What does that even mean? According to Ms. Rometty, the vast amount of data now produced, the power of the computers, and today’s shared connectivity have now created the means for the production of knowledge – with social networks as the new production line. “In a social enterprise, your value is established not by how much knowledge you amass, but by how much knowledge you impart to others.” So how do you produce knowledge?
The long-term objective is an enterprise expertise model where information is analyzed automatically, content is organized in relevant topics and personalized action plans are created – and where rewards are shaped by who contributes the most and best ideas.
The goal is not to just share information – the connectivity – but actually create experts in an organization. Anyone in an enterprise can become an expert. Could every company, however, hire, compensate, evaluate and promote employees based upon the concept of “shared and catalyzed knowledge”? Ms. Rometty believes most can and will. Every IBM employee now has a social network page, and access to vast amounts of internal and external information sources, blogs and wikis – the ability to create intellectual capital. According to Ms. Rometty, IBM is working toward a future -
in which all IBMers will be rated by their peers and profession, based on how good they are at sharing their knowledge . . . how good they are at making it useful, consumable . . . how well they contribute to the community and to [their] clients’ needs and experiences.
I certainly agree that the ability to communicate, contribute and share is going to be a key factor to success in future organizations!
Principle 3: Value will be created not for “market segments” or demographics, but for individuals.
The rapid emergence of Big Data, social networks, mobile communications, and location tracking software has lessened the inherent value of segmenting consumers – whether public consumers of government services or private consumers of business. “I” and “You” bear today’s fruit. It’s the age of the individual. Today’s technology has created the ability for enterprises to track individual wants, needs and desires, and then to encapsulate that into a good or service targeted to that specific consumer.
In her speech, Ms. Rometty gave the example of how President Barack Obama’s re-election campaign used Big Data analytics and behavioral science to understand how individual voters in key states might react.
Using dynamic modes powered by voter contact data, the campaign’s Analytics team ran 66,000 simulations each night to protect who was winning every battleground state. They used this data to allocate resources-funding, campaign workers, outreach – in real times. The final simulations of the Ohio vote were accurate to within 0.2 percent.
Companies now must recognize the emergence of this capability to remain competitive in the global market place. Forward-thinkers will use this data and computational ability to actually learn what “You” and “I” want – not what some organization deems “we” want. Ms. Rometty believes, in the end, that organizations and consumers will offer each other measurable value – information about “You” and “I” in exchange for a benefit in return.
Virginia Rometty concluded by saying:
[t]he challenge is not the technology. The challenge, as always, is culture . . . changing our entrenched ways of thinking acting and organizing. . . .We have, in Big Data, a vast new natural resource, as well as the means to mine it for value. And that is unleashing not only insight and knowledge, but new ways of creating business and societal value . . . and new ways of working that are more flexible, innovative, collaborative, humane.
Erik Brynjolfsson, director of the Center for Digital Business at MIT’s Sloan School of Management, echoed Ms. Rometty’s sentiments. (see New York Times, I.B.M.s Rometty on the Data Challenge to the Culture of Management). “The technology has been available for a few years now to create a management revolution based on big data, and now we’re beginning to see more and more companies undertake the much harder job of reinventing their business process and culture to take full advantage of those technologies.” Based upon the number of targeted ads that we are seeing, I am pretty confident a number of organizations have embraced this last concept!
So what does this mean for you as an individual or an organization? Do you agree that you should disregard your gut instinct and replace it with a “computerized” risk analysis? Do you share and create knowledge and information to increase your market share and demonstrate your expertise – whether via social media or otherwise? And finally, what do you think of the individually targeted culture being created by all of the data mined by organizations? I admit that I don’t know where I stand. As always, we welcome your input!
Teresa is the Chair of Fredrikson’s Non-Competes and Trade Secrets Group, and an MSBA Certified Labor and Employment Law Specialist. She counsels business clients on risk management and policy development relating to employee use of technology, and also litigates their business and employment disputes. Teresa trains, writes and lectures extensively on legal issues arising from business use of technology and social media.