Slide 1:
ADA Audio Conference Series
April 15, 2014
This session is scheduled to begin at 2:00pm Eastern Time
Real-Time Captioning and the PowerPoint presentation are available through the Webinar Platform.   Audio Connection is available through the webinar platform/telephone/Mobile App depending on what you registered for.

Slide 2:
Listening to the Session
The audio for today’s webinar is being broadcast through your computer or via telephone for those that registered for that option.  
If using your computer, please make sure your speakers are turned on or your headphones are plugged in:
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If you are having sound quality problems check your audio controls by going through the Audio Wizard which is accessed by selecting the microphone icon on the Audio & Video panel 

Slide 3:
Listening to the Webinar, continued
MOBILE Users (iPhone, iPad, or Android device (including Kindle Fire HD)) 
Individuals may listen** to the session using the Blackboard Collaborate Mobile App (Available Free from the Apple Store, Google Play or Amazon )

Slide 4:  
Captioning
Real-time captioning is provided during this session via the webinar platform.
The caption screen can be accessed by choosing the CC icon in the Audio & Video panel.
Once selected you will have the option to resize the captioning window, change the font size and save the transcript.

Slide 5:
Submitting Questions
If you are listening by phone you will be instructed by the Operator on how to ask a question.
Via Webinar platform you may type and submit questions in the Chat Area Text Box or press Control-M and enter text in the Chat Area.  You will not be able to see the question after you submit it but it will be viewable by the presenters.
If you are connected via a mobile device you may submit questions in the chat area within the App                                                                                                       
Questions may also be emailed to webinars@ada-audio.org
Please note: This webinar is being recorded and can be accessed on the ADA Audio Conference Series website at www.ada-audio.org within 24 hours after the conclusion of the session.   The edited written transcript will be posted at this same site within 7 business days following the conclusion of the session.

Slide 6:
Customize Your View
Resize the Whiteboard where the Presentation slides are shown to make it smaller or larger by choosing from the drop down menu located above and to the left of the whiteboard.   The default is “fit page”

Slide 7:
Customize Your View continued
Resize/Reposition the Chat, Participant and Audio & Video panels by “detaching” and using your mouse to reposition or “stretch/shrink”.  Each panel may be detached using the icon in the upper right corner of each panel.

Slide 8:
Setting Preferences
Depending on your system settings you may receive visual and audible notifications when individuals enter/leave the webinar room or when other actions are taken by participants.  This can be distracting.
To turn off notifications (audible/visual)
Select “Edit” from the tool bar at the top of your screen
From the drop down menu select “Preferences”
Scroll down to “General”
select “Audible Notifications”   Uncheck anything you don’t want to receive and “apply”
Select “Visual Notifications” Uncheck anything you don’t want to receive and “apply”
For Screen Reader User – Set preferences through the setting options within the Activity Window (Ctrl+slash opens the activity window)

Slide 9:
Technical Assistance
If you experience any technical difficulties during today’s session:
In webinar platform:  Send a private chat message to the host by double clicking “Great Lakes ADA” in the participant list. A tab titled “Great Lakes ADA” will appear in the chat panel.  Type your comment in the text box and “enter” (Keyboard - F6, Arrow up or down to locate “Great Lakes ADA” and select to send a message ); or By Email webinars@ada-audio.org ; or Call 877-232-1990 (V/TTY) 

Slide 10:
Googling Job Applicants
Joe Bontke 
Outreach Manager and Ombudsman, EEOC Houston
April 15, 2014

Slide 11:
Woman earn only 78% of what men earn

Slide 12:
The unemployment rate for veterans who served on active duty in the U.S. Armed Forces at any time since September 2001--a group referred to as Gulf War-era II veterans--was 12.1 percent in 2011
Slide 13:
Generation X and Y make up over 50% of the workforce.
For the first time ever, there are 5 generations at work at the same time.
Slide 14:
Screen Cap showing the Google Logo and Search Engine features

Slide 15:
Can I Google Applicants?
Yes you can*
…* BUT During this session we want to look at more:
-  What’s legally allowed to search when investigating a candidate? 
-  The return on investment of online screening 
-  The current "case history" that might motivate a social media search risk 
-  New tools and methods for analyzing information found

Slide 16:
What’s in your “backpack”
It’s what we “bring” 
It’s who I am
It’s my “stuff”

Slide 17:
Generation Groups
Traditionalists (prior 1945)	
Baby Boomers (1946-1963)		
Generation X (1964-1980)		
Generation Y (1981-2000)

Slide 18:
Workplace Dynamics?
Define these terms
Team player
Effective communication
Appropriate
Casual
Person with a disability

Slide 19:
Protected Federal Categories
Race, National Origin, Color, Religion, Disability, Sex, Age 40 plus

Slide 20:
There are about 540,000 words in the English language…

Slide 21:
About 5x as many as during Shakespeare’s time

Slide 22:
More than 3,000 new books are published every day

Slide 23:
Is Social Media a Fad?
http://www.youtube.com/watch?v=lFZ0z5Fm-Ng&feature=autofb 

Slide 24:
The Digital Age
Welcome to the Virtual World of:
“Friends”: Facebook & Instagam - Mostly social, but growing business network
“Connections”: LinkedIn - “Facebook in a suit”
“ Followers”: Twitter - Instant messaging on steroids 

Slide 25:
There are over 1 billion registered users of Facebook
Screen shot of the sign-in page of Facebook

Slide 26:
If Facebook were a country, it would be the 3rd largest in the world (between India and the U.S.) and this data does not include Twitter or myspace.com

Slide 27:
Why employers Google….
To ensure the best fit between the applicant and the organization
To find candidates with characteristics that will maximize work productivity and minimize costs and liability

Slide 28:
Internet Never Forgets…
Stacy Snyder
1st Amendment does not cover photos
Internet records everything and forgets nothing
Every online photo, Facebook status update, Twitter post and blog entry by and about us can be stored forever
Photo of girl dressed as a pirate with drinking from a glass

Slide 29:
Screenshot of the Boston Globe article discussing Justin Bassett whose potential employer asked for his Facebook username and password

Slide 30:
Obligations of Employers
Make the workplace free of unlawful discrimination, harassment and retaliation
Promptly and confidentially investigate complaints of discrimination, harassment and retaliation
Where discrimination, harassment and retaliation may have occurred, take prompt and appropriate remedial action (i.e. discipline commensurate with the offense)

Slide 31:
Screen shot of Google Search engine page with Joe Bontke Name typed into the search box

Slide 32:
Screenshot of EEOC Outreach and Education Facebook profile page

Slide 33:
Screenshot of Joe Bontke's Facebook Profile Page

Slide 34:
Screenshot of Joe Bontke's LinkedIn profile page

Slide 35:
Screenshot of Joe Bontke's Twitter profile page

Slide 36:
Screenshot of Find LY application via the Facebook page

Slide 37:
Twitter
200 million users
Library of Congress  did you know will be acquiring and permanently storing the entire archive of public twitter posts since 2006

Slide 38:
IMPORTANCE OF POLICIES
"Twoosh" is a word invented to describe Twitter messages that contain exactly 140 characters. 
Our Twitter policy: (in 140 characters)
Be professional, kind, discreet, authentic. Represent us well. Remember that you can't control it once you hit "update.“

Slide 39:
HR Statistics
75% of U.S. recruiters are required by their companies to do online research of candidates
70% of U.S. recruiters report they have rejected candidates because of information found online

Slide 40:
SCREENING TOOL FOR JOB APPLICANTS
65 percent of hiring managers “Google” applicants
65 percent check social networking sites
50 percent of these searches result in job rejections
Graphic showing a chart with responses to question:  Do you currently use a social networking tool?
Response:  Yes – 67%
No – 32%
Do not know what social networking is – 1%

Slide 41:
PROBLEM ISSUE
Employer will potentially have access to information such as involvement in a stakeholder group, people with disability organization, sexual preference, cultural and religious identification.

Slide 42:
Photo screenshot of Joe Bontke and his family wearing T-shirts that read "Team Mamie" getting ready to enter a race/competition

Slide 43:
4th Amendment
Fourth Amendment (unreasonable searches and seizures)
Common Law
Electronic Communications Act of 1986
Federal Stored Communications Act

Slide 44:
To Like or Not Like..
Does clicking the “Like: button on Facebook constitute “concerted activity”?
	Hispanics United of Buffalo Inc. Decision
Is a Facebook “Like” constitutionally protected?
Bland v Roberts Decision
Image of the “Like” graphic on Facebook

Slide 45:
EVOLUTION:  O’Connor v. Ortega
U.S. Supreme Court first recognized Fourth Amendment privacy protection in pre-Internet 1987.
Employee’s privacy expectations could be shaped and restricted by the employer’s policies and practices.
HELD:  employee had a legitimate expectation of privacy in his desk and file cabinets. 

Slide 46: 
CITY OF ONTARIO V. QUON (2010)
ISSUE:  Whether a public employee (a police officer and a SWAT team member) stated a claim for violation of Fourth Amendment rights where the public employer (a police department), reviewed texts sent and received by Quon on his department issued pager. 

Slide 47: 
Takeaway
Every employer, whether public or private, must have clearly drafted policies giving employees notice that they have no expectation of privacy in company electronic equipment, whether this be in emails, phone log details or text messages. 

Slide 48:	
ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986
Primary federal law addressing privacy concerns is the ECPA.
Exceptions interpreted to mean that if employer maintains its own email system and assumes “provider status,” employer is allowed to retrieve all stored email messages.  
Two types of communications:
Messages in transit (happens in seconds – limited opportunity for interception)
Stored messages (most typical work scenario)

Slide 49:
Passwords to Avoid
SplashData’s list of the 25 most common passwords found on the Internet. 
Here are the top worst passwords to use:
123456
Password
12345678
Qwerty
Abc123
iloveyou (#9), trustno1 (#24), monkey (#17).

Slide 50:
Federal Stored Communications Act
“Wiretapping Act”
Criminal Offense to Intentionally:
	(1)  Access, without authorization, a facility through which an electronic communication service is provided; or
	(2)  Exceed an authorization to access that facility.

Slide 51:
TAKEAWAY
Do not gain access to employee’s website by either receiving private information through another “friend,” or by going through a person on the employee’s “friends” list.  

Slide 52: 
ISSUES ARISING FROM MONITORING EMPLOYEES (applicants next?) 

Slide 53:
Positive Treatment of Monitoring
Smyth v. Pillsbury (E.D. Pa. 1996):  
Upheld firing of employee who transmitted inappropriate emails; Held:  Company’s interest in preventing inappropriate and unprofessional comments or even illegal activity over email outweighs employee’s privacy interests.

Slide 54:  
HOT TOPIC – Interference in Union Organizing Activities or “Concerted Actions”
Photo of EEOC Poster discussing the Employee Rights Under the National Labor Relations Act

Slide 55:
NLRB VIEW
	Monitoring employee’s social networking activity has the potential of creating a chilling effect on the employees’ communications regarding the terms and conditions of their employment, in violation of the NLRA at 29 U.S.C. §157. 

Slide 56: 
KNAUZ BMW (May 24, 2011)
NLRB alleges unlawful termination of an employee for posting photos and comments on Facebook that were critical of dealership
Unhappy with quality of food and beverages at a BMW promotion event
Again non-union:  “concerted activity” because it involved a discussion among employees about the terms and conditions of their employment

Slide 57:  
Best Practice Advise:  Create Written Acceptable Use Policies (“AUP”)
By creating and consistently applying policies informing employees that their use of corporate networks, including email access, can be monitored, the employee has waived his/her right to privacy in communications made on the company’s network. 

Slide 58: 
Basic Contents
Urge employee to take work-related complaints to HR before blogging or posting about them
Clarify that discipline will be imposed, up to and including termination, if an employee misuses social networking sites relating to employment or other employees in the context of employment
Establish a reporting procedure for suspected violations and also reiterate that company’s anti-discrimination policies also apply to electronic communications
Remind employees that computer and email systems are not private and that company may monitor computer, email and/or text messaging usage

Slide 59:
Basic Contents
Require employees to sign a written acknowledgment form affirming that they have read, understand and will abide by the company’s acceptable use policy
Prohibit unauthorized transmission of corporate trade secrets and other confidential information
Define discipline to be imposed for transmitting or receiving communications containing pornographic, derogatory, defamatory, sexual, racist or harassing statements
Define whether email is automatically deleted after a specific time period

Slide 60:
Basic Contents
Define whether online shopping, surfing, gambling or stock trading is allowed
Describe when and how the Internet may be used during the workday and/or after work hours on company equipment
Define penalties for violating the AUP
Enforce this policy consistently and indiscriminately

Slide 61:
Permanency of Information
Viktor Mayer-Schönberger
A society in which everything is recorded will forever tether us to all actions, making it impossible, in practice, to escape them.
Without some form of forgetting, forgiving becomes a difficult undertaking
No second chances
Worst thing you have done is the first thing people will know about you

Slide 62:
Ways to Protect Your Image
Be careful.
Do not post anything on any site that you would not want a potential employer to see.
Be discreet.
Set your profile to private and block inappropriate comments that others may make on your profile.
Be prepared.
Regularly check your profile for inappropriate content.  Make sure you have an answer ready to explain or counter any “digital dirt” employers may see.

Slide 63:
When It Becomes Illegal
When employers base their hiring decision on an applicant’s protective status
When information discovered leads to employer’s knowledge of information that would be illegal to use against an applicant in a hiring decision i.e. discovering an applicant was arrested and using that to disqualify
Things you cannot ask in an interview are the same things employer cannot research

Slide 64:
Questions To Ask When Using Social Media…
Is it valid?
Does the information predict job performance?
Is the information job-related?
Is it legal?
No laws have been passed yet
Information posted on the internet is considered “public domain”
Opens organization up to “perception” of using protected information
Is it worth it?

Slide 65:
Ways to Protect Yourself…
Add “off-duty conduct” policy
Check organization’s “cyber reputation”
Check employees’ “cyber reputation”
Advise caution among employees when posting things on the internet
social networking policies for their employees while at work, while using employer equipment/facilities, or that will reflect directly on the employer.

Slide 66:
What is eDiscovery?
The legal discovery of electronic documents and data
eMail, web pages, word processing files, spreadsheets, meta data, databases, backup tapes, cache memory, hard drives, thumb drives, PDAs, firewall/IDS logs, phone call logs, IM transmissions, etc.
Anything outside of the traditional discovery of writings or business records on paper is “eDiscovery”

Slide 67:
Unique Problems With Social Networking Activities
Blurring of lines between “work” and “personal”
No “filter” or “edit”
Reach a vast audience
Immediate public viewing
Quicker and less “formal” = users are less guarded and careless

Slide 68:
Background Checks
Two circumstances employers will meet “job relatedness and consistent with business necessity”
The employer validates the criminal conduct screen for the position in question 
The employer considering at least 
1) the nature of the crime, 
2) the time elapsed, and 
3) the nature of the job ,

Slide 69:
criminal background checks Individualized Assessment
Consider each person’s record based on the potential risk in the particular position
Mitigating Factors
Marriage
Education
Successful Employment History
Age at time of release or conviction
Rehabilitation Efforts

Slide 70:
Photo of Martha Steward and Rap Artist Snoop Dog cooking together on her show. The caption reads: Be Mindful About Stereotypes! Only One of Them is a Convicted Felon. 

Slide 71:
FY2012 in Review
EEOC FY2012 Statistics contrasted with the Stats for Texas
Retaliation – U.S. 37.4%  Texas 41%
Race – U.S. 35.4%  Texas 38.3%
Sex – U.S. 28.5%  Texas 29.4%
Disability – U.S. 25.8% Texas 35.9%
Age – U.S. 23.5%  Texas 21.3%
National Origin – U.S. 11.8%  Texas 17.5%
Religion – U.S. 4.2%  Texas 6.3%

Slide 72:
With the mobile application Trapster you can see where police are- wouldn't it be nice if we had a Trapster for the EEOC to show you what we are using are resources on to enforce the law.

Slide 73:
EEOC Strategic Enforcement Plan (SEP)
Nationwide Priorities:
I. Eliminating systemic barriers in recruitment and hiring.
  Barriers: 
exclusionary practices and policies
Steering individuals into jobs based on protected category
Restrictive application processes
Use of screening tools with adverse impact

Slide 74:
II. Protecting Immigrant, migrant and other vulnerable workers
Target:
Disparate pay
Job segregation
Harassment
Human Trafficking
Discriminatory Language Policies

Slide 75:
III. Address emerging issues
Issue 1- ADAAA
Issue 2- LGBT 
Coverage under Title VII provisions
Issue 3 – Pregnancy
Women being forced onto unpaid leave after being denied accommodations

Slide 76:
IV Enforcing Equal Pay Act
The next Equal Pay Day is April 9, 2014. 
This date symbolizes how far into 2014 women must work to earn what men earned in 2013. 

Slide 77:
 V. Preserving access to the legal system
Barriers:
Policies and practices intended to discourage or prohibit the exercise of rights under discrimination statutes or impede EEOC Investigation.
VI. Combating harassment
Basis for harassment:
Race,  Color,  Ethnicity,  Religion,  Sex,  Age,  Disability 
*National Education & Targeted Outreach

Slide 78:
Screenshot of Reputation.com website

Slide 79:
Screenshot of CareerExcuse.com website- a website that supposedly helps people by providing fake references.

Slide 80:
Screenshot of fakeyourjob.com website

Slide 81:
Screenshot of the Fake Your Job FAQs webpage
Slide 82:
Screenshot of the spoofcard.com website which offers to display a different telephone number to protect yourself or pull a prank on someone. 

Slide 83:
Screenshot of the Cricket wireless phone provider homepage

Slide 84:
What is truth?

Slide 85:
What is truth?
Finished files are the result of years of scientific study combined with the experience of many years of experts.

Slide 86:
Is your perception …. Sometimes your truth?
Sometimes we have to take another look at what we think we know

Slide 87:
Any Questions, Comments,
Concerns or Complaints
Joe Bontke
EEOC Houston
Outreach Manager and Ombudsman
713 651 4994 office
713 907 2855 cell
joe.bontke@eeoc.gov or
EEOC Training Institute
www.eeotraining.eeoc.gov 

Slide 88:
Thank you for participating in today’s 
ADA-Audio Conference Session
The next scheduled session is:
“Electronic Information & Digital Access: Update on Compliance Activities and Enforcement Activities ”
May 20, 2014
www.ada-audio.org or 877-232-1990 (V/TTY)