Social Media checks on possible new hires? Is this proper?

Question

I heard that many Firms conduct social media history checks on potential new hires. We all say things on social media that we may regret and our hurried writing style is none to impressive.

Is this true?

Any advice?

Answer 1

Yes, review by a private law firm of social media accounts is proper if the JD or lawyer being considered consents.

-->> A private firm may ask the attorney for his/her usernames and passwords (per account) or the job-seeker can sit with a firm recruiter and log-in confidentially.

--->> Of course, if a JD or lawyer needs the job he/she will consent, so obviously- there is economic duress in play. But refusing to provide access is like takng the 5th Amendment. A job applicant will likely be perceived guilty. In civil trial jargon, "a negative inference may be drawn".

HERE ARE MY TAKEAWAYS:

Many seem surprised about the existence of social media checks as an integral part of a law firm’s “onboarding” process.

->> Social Media checks are quite common in the law firm hiring process (though little discussed). The debate goes back several years and will only increase with enhanced facial recognition (which will leave “anonymity via Pen Name or Avatar” in the dustbin of history. Nothing but a quaint relic of the past).

A simple cure: Discipline yourself- don’t populate the Internet with your pictures (duh?) or your phone number(s).

->> Please read the following two Articles addressing this intrusive practice, the history behind it, and steps certain state legislatures have taken or are taking to prohibit or limit the practice.

->> Nevertheless, in most (all?) states the highest court in the state, not the state legislature, has exclusive 24/7 disciplinary powers over attorneys. State statutes touching on matters of judicial procedures (such as Attorney and Judge Disciplinary and Conduct Rules) do not limit a court’s power in this arena. You know the drill here: “separation of powers”.

->> Given the highly sensitive aspects of legal practice (confidentially is mostly inviolate), I don’t foresee a State’s highest court prohibiting investigation of social media records. Nor do I think such a restriction would be constitutional. Somewhat off-mark, but true: many a domestic terrorist has posted threats (even details of their plans) on social media in advance of their killings.

->> Do vet this observation by me: I am not aware of any Rule of Professional Conduct (or disciplinary or advisory adjudication) that prohibits private law firms from reviewing social media accounts with the prospect’s consent.

->> Below are just two of countless legal authorities supporting my concern that those striving to be the perfect model of a new hire must not have previously engaged in unprofessional messaging.

Norell and Khoury:

(1) Norell, “[S]ocial Media Privacy Protection” at [https:www.floridawagelaw.com/will-florida-employees-have-social-media-privacy-protection-in2016]

-->> Mr. Norell does not mince words:

“… an employer can even demand that an employee give them access to their social media pages by either handing over their passwords and usernames or by signing [into their laptop] with management so management can view their [messaging history] and, if already hired, [they] may be terminated [“at will”] and may not have rights to a wrongful termination claim”.

->> And this startling statistic is also on all fours:

“Nearly 80% of recent grads think it’s fine for employers to review [their] social media, and over 65% also think it’s fine for a state bar to review social media when considering admission”. Khoury, “Social Media and the Moral Character Requirement” at https://www.findlaw.com/legalblogs/greedy-associates/social-media-and-the-moral-character-requirement]

->> I thoroughly understand that such access by a potential employer can be a disquieting invasion of privacy. And if a prospect has the qualifications to seek employment elsewhere (with a firm far less interested in social media history) he/she may wish to do so.

I have just a few more comments:

->>(1) A social media search is no different than a thorough background investigation and we should not forget the required Character and Fitness Report. The Bar has investigators that will interview friends, neighbors, employers, co-employees, and faculty- even school counselors.

(2) The onus must be on the prospective hire, starting in 9^th grade or even earlier. From their first forays into social media, a subscriber must write professionally and avoid personal attacks, misogyny, curse words, off-color humor, racism, sexism, inappropriate pictures or repostings, religious attacks, sloppy writing, bad grammar, spelling errors, or other “Red Flags” suggesting that the recruiter should check the “real you" against the “you on display" during interviews. Politics should also be avoided, because many law firms are aligned with one party (and may even have lobbyists on staff).

->> For those going into Law School, in Law School, at the point of the Bar Exam, or sworn into the Bar under oath, each email or social media text they draft must be as professional as anything they would undertake in messaging faculty, employers, courts, clients, experts, or adverse counsel.

->> Writing technique is not a roller-coaster, speeding up and down from short-cuts and memes to the type of writing demanded by law reviews.