Good day, ladies and gentlemen, and welcome to "Googling Job Applicants" conference call. At this time all participants are in a listen-only mode. Later we will conduct a question and answer session and instructions will follow at that time. If anyone should require assistance during the conference, press star and then zero on your touch tone telephone to reach an operator. As a reminder, this conference call is being recorded. I would like to introduce your host for today''s conference, Robin Jones. Please proceed.
Thank you and welcome to the ADA Audio Conference Series which is brought to you by the ADA national network. We''re happy your ear able to join us today and people are joining from a variety of areas across the country. We know some people are connected by telephone as well as on the webinar platform. Because of that I''m going to go through a few slides of some of the logistics of today''s technical part of the session and then I will turn it over to our session moderator and presenter. You should be listening via your computer or telephone, depending on which option you registered for. If using your computer, make sure you speakers are turned down and headphones plugged in. You can control the audio broadcast using the audio and video panel, adjusting the sound by sliding the sound bar left or right. If you have any quality sound problems today in the webinar platform, you can check your audio control by going to the audio wizard and that is on the audio and video panel. It''s an icon that looks like a microphone with a red star on it. If you click on that and go through the process that will help you adjust the sound if you''re having problems on the webinar platform today. For those of you also using the mobile options, iPhone, iPad, android, Kindle Fire, et cetera, please note that the closed caption is not available in the apps and there''s limited accessibility for screen readers using the mobile app. Captioning is available for today''s session. Use the CC icon at the top of the audio and video panel. Once you''ve selected it, you''ll have the option to resize the caption window, changing the font size, as well as saving the transcript. We will take questions today from the audience. We will have an option to take questions through the chat room if you''re participating through the webinar platform. If you''re on the telephone, you will be given directions later by the operator on how to submit questions. If you''re on a mobile device you also can submit to the chat area as well. You also have the secondary option of sending an email to us at email@example.com and we''ll transmit the question to the presenter for today''s session. Again, as a reminder, the session is being recorded. It will be available on the archives page of the www.ada-audio.org website and a written edited transcript will also be posted on that same site in seven days following a conclusion of the session. You can customize your view today what you''re viewing. The white board is where the PowerPoint presentation shows up. You can make it smaller or larger and it will only change your view. The drop down menu at the top of the screen is defaulted at the page, but you can alter that depending on your individual desire. You can also resize and reposition the boxes, chat, audio video panels by detaching them using your mouse or repositioning by stretching or shrinking using your mouse. There is an icon that looks like a bunch of lines on the page or a piece of paper in the upper right-hand corner of each panel. If you''re hearing any dings or notifications when somebody enters the room or anybody takes action in the room that means your system has preferences set to give you audio or visual notifications. You can customize those by going to the edit drop down menu at the top of your screen on the tool bar. Choose preferences and then scroll down within the preferences to general, selecting both audible and visual notifications, making sure nothing is checked. If you''re a screen reader, you can set your preferences through the settings options in the window control slash and that will open the activity window. If you have any problems today or have issues with your technology or the telephone or anything, you can contact us at firstname.lastname@example.org or calling us at 877-232-1990. You can send a message in the chat area as well. We''d like to begin the session and at this time I''ll turn it over to the moderator for today''s session. She is from the Southwest ADA Center and she will introduce our presenter and give you additional instructions on how to operate today''s session. At this time, I''m going to hand over the microphone to Marisa. Go ahead, Marisa.
Thanks, Robin. Good morning and afternoon, everyone. Welcome to the ADA Audio Conference Series. Again, my name is Marisa Demaya and I''m with the Southwest ADA Center and I''ll be serving as moderator for today''s session.This program is brought to you by the ADA national network. The ADA Audio Conference Series is offered monthly and covers a variety of topics related to the ADA. And today''s session is titled "Googling Job Applicants." And we are privileged to be joined by our presenter, Joe Bontke from the EEOC Houston office. I''m going to introduce Joe in just a second. Individuals are joining today using a variety of mediums, including the telephone, streaming audio on the Internet and real-time captioning. Individuals may also view today''s PowerPoint online. So refer to your instructions for the URL. Again, as Robin mentioned, a written transcript of the session will be created, edited and posted to the www.ada-audio.org website along with the digital recording of the session within about 10 business days following the conclusion of the program.Now, our presenter will provide us with some valuable information today and at the conclusion of his presentation there will be an opportunity for everyone to ask questions. Again, the operator will provide instructions when we''re ready to take questions, depending on the number of questions we may not be able to address all of your issues or concerns today. We encourage you to follow up with questions with your regional ADA center at 800-949-4232. So I''m going to begin today''s session by introducing Joe Bontke. For anyone who doesn''t know, Joe Bontke is the outreach manager and ombudsman for the Houston, Texas district office of the U.S. equal opportunity employment commission. He serves as chair as the Texas governor''s committee on people with disabilities. He''s been in the field of human resources and civil rights for about 24 years now and has great experience in employment law and adult education. If you would like a little more information on Joe''s full bio, you can go ahead and read that at www.ada-audio.org website. I''m going to go ahead and turn it over to Joe here. Joe, welcome.
Thanks, Robin. Good morning and afternoon, everyone. Welcome to the ADA Audio Conference Series. Again, my name is Marisa Demaya and I''m with the Southwest ADA Center and I''ll be serving as moderator for today''s session.This program is brought to you by the ADA national network. The ADA Audio Conference Series is offered monthly and covers a variety of topics related to the ADA. And today''s session is titled "Googling Job Applicants." And we are privileged to be joined by our presenter, Joe Bontke from the EEOC Houston office. I''m going to introduce Joe in just a second. Individuals are joining today using a variety of mediums, including the telephone, streaming audio on the Internet and real-time captioning. Individuals may also view today''s PowerPoint online. So refer to your instructions for the URL. Again, as Robin mentioned, a written transcript of the session will be created, edited and posted to the www.ada-audio.org website along with the digital recording of the session within about 10 business days following the conclusion of the program.Now, our presenter will provide us with some valuable information today and at the conclusion of his presentation there will be an opportunity for everyone to ask questions. Again, the operator will provide instructions when we''re ready to take questions, depending on the number of questions we may not be able to address all of your issues or concerns today. We encourage you to follow up with questions with your regional ADA center at 800-949-4232. Our first slide here is with tongue and cheek, one of those issues that half of the workforce is made up of the female population where women are only earning 78 cents of what men earn. And the unemployment rate for veterans who serve on active duty or the Armed Forces since the Gulf War era is at an all-time high of 12.1%. The workplace being made up of an array of generations that I''m just teasing you now will have an effect on our topic today, as will the other two groups that we mentioned. So applicants and is everyone getting the true picture. So if I were to Google these folks, whoever these folks are, what are the aspects that I''m learning? And what I hope to be able to accomplish in our time together is: where are the legal boundaries when we''re looking at candidates? What is the return on investment of the sleuth who sits down at Google and attempts to find all this information? What is the current case history? And some of the new tools of Googling applicants. There obviously is no prohibition against this, but the realization of what we''re learning is that we will all do it differently. My philosophical approach to topic is that we all come to the workplace or really any place that we go with this imaginary backpack on. [The backpack] is what we bring with us. It''s our education, our life experiences, our family of origin, cultural identity, all of our certifications and our formal and informal educations. And it''s our stuff, and we filter an awful lot through that stuff. The realizations of that stuff are we don''t leave it in our home or in our vehicle and then come to work. We come to work with our duties and responsibilities and when we get there, we''re going to have a peer group that will have experienced things similarly to what we''ve experienced. So I''m kind of an open book. I''m a Baby Boomer. I''m 56 this year. I was raised by Traditionalists, my mom and dad. I''m raising three Gen Y''ers, and one got married and I thought I was getting rid of her but she brought him home. So there are four of them in my life. All wonderful people, but I have realized that we do things differently. And suppose we were in a room where there were representatives of the Traditionalists, the Baby Boomer and the Gen X and Gen Y and we ask them to define the terms: team player, effective communication, appropriate and person with disabilities. Do you think the four groups would answer the definitions the same way? My opinion is no, we will see things differently. There is no I in team, the team helps me perform. Effective communication, if I want to talk to my children, I better text them. I better not text my mother, I better call her. She won''t find the text in my phone. My children won''t answer their phone. Appropriate and casual, those are the emails that we get an awful lot of concern about because what one person thinks is playful banter another might find offensive. I have a famous email I sent out telling our interns to feel free to come in to work casual and, boy, was I sorry I offered that suggestion. What we''re here to talk about is the notion of a person with a disability. I think generationally we will have drastic different understandings. People who are educated after or during the Rehabilitation Act will understand more of an inclusive mainstreaming where prior to that it would have been much different. Or if in my backpack, I don''t have that comfort level with somebody of a different ability, it may be problematic. So the dynamics are fascinating. Then when we look at the notion of protected categories, that, I''m sure in recent days you have become further aware of the 50th anniversary of the Civil Rights Act of 1964; which protects race, national origin, color, religion and sex. We had the Americans with Disabilities Act or ADAAA, as it''s been amended, and the age discrimination and employment act. So I''m over 40. I''m using myself in that picture. That''s me about 25 pounds ago. There are about 540,000 words in the English language. Five times as many as Shakespeare had during his time. The phenomenon of the Internet has enabled us to publish 3,000 new books every day. And on your own time you may want to go to YouTube and look up, Is social media a fad? I''m not going to bore you with the seven or 12-minute version of this, but it is worth looking at on your own time because I think it''s a fad that''s here to stay Now, about the digital age -- don''t expect me to speak negatively about any of it, because I''m involved in all of it and I really find it fascinating and enjoyable. I have my friends, my Facebook, my Instagram, that social network that at times gets me speaking engagements and connects me with long lost classmates and friends. And my connections which I call LinkedIn, that''s Facebook in a suit. It''s a little bit more formal. Or the Twitter, the instant followers, that is instant messaging on steroids.If we were to peel the onion and look at the phenomenon, there are a billion registered users of Facebook. If it were a country, it would be the third largest in the world somewhere between India and the U.S. That''s not including Twitter or what some people feel is the floundering MySpace. However it is having resurgence to some extent. But employers are using it to take a peek at who they think they want to hire. And there are no prohibitions against this. And I hope there never is, because I think it''s one of the tools that you can use to ensure that fit between the applicant and the organization. Anyone in the audience who thinks to themselves, have I ever had a bad hire? My hope is you''re not pointing at anyone in the room right now without them seeing you, but we''re aiming to find candidates with characteristics that are going to maximize the work productivity and minimalize any of those problematic issues that may come our way. Here is the issue that I could call problematic, but it wasn''t for me. It was for this young lady called Stacy Snyder. Stacy probably will always be known as the poster child of the first amendment and the Internet. Stacy worked as a student teacher while she was 25 years old at a high school in Lancaster, Pennsylvania. Because she had posted a picture on her social networking showing her at a party wearing a pirate hat and drinking from that plastic cup, somebody had captioned it, "Drunken Pirate." After discovering the page, the high school principal saw this and in essence complained to the dean of students, and said, "This is unfortunate, but I think she''s picturing herself in an unfavorable light" Maybe generationally and maybe not understanding the full breadth of what she was doing, because remember she''s 25 at this time, well of age to imbibe anything she wanted. The dean of students said, "A woman of this caliber who depicts herself in such a way in the town square of the World Wide Web is not fit to educate children" therefore her teacher''s certificate, and although she met the requirements for the master''s degree had been denied. You can imagine how upset she was, but anyone looking at this picture, I would caution you, can anyone say what is in the cup? So there''s no evidence from that whether it is alcohol or non-or whatever it is, but the perception became the reality and the court said Stacy, while this is unfortunate, the first amendment doesn''t cover photos. And I know for myself even if I try to remove things from the Internet, they''re pretty much there forever. There are things I am never going to be able to get down. Every online photo, Facebook status update, Twitter post or blog entry about us can be stored there forever, problem or not. And as I look at my three children going through college, I realize, "Oh, my God, we have a common name, if somebody Googles us, this is going to come up". When you have a son who enters a beauty contest in his junior year at Sam Houston State University in drag and wins, you realize where the father in me is concerned. Now, all that being said, a lot of students have come to me and said, "Joe, we have a problem where employers are asking us for our Facebook passwords at an interview. Can they do that?" And this took a little research on my part, but it probably shouldn''t have, had I realized where the issue was. Now, while we would think, "No, you can''t do that". If somebody wants the job, they''re probably going to jump through as many hoops as they can to get the job. However, there''s a very good answer for this. Those of you on Facebook really already know it, but you don''t remember it. At one point you signed up with Facebook and you hit a page that gave you an agreement between you and the software provider called Facebook. And one of those paragraphs said, "For security purposes, never give out your sign-on or password to anyone else" and you hit a button that said "I agree." The problem is none of us ever read it. So now we have state legislative bodies creating law saying employers can ask for passwords when the agreement contractually already exists between the provider and the applicant. Now, in the civil rights era, we understand that we come to work with all of these different backpacks and all these different past histories and qualifications and cultural identities and we''re given duties and responsibilities at work. And the obligation of the employers that is shared with an employees to understand rights and responsibilities. And my three bullets here is kind of important turning points in a lesson of how this all comes together. We need to make the workplace free of unlawful harassment discrimination and retaliation. What does that mean? Well, if somebody comes forward and is saying, I feel discriminated against or harassed or retaliated, the second prompt needs to come into play, to promptly investigate complaints of discrimination, harassment or retaliation. And, third, where it''s found, you take prompt and appropriate remedial action. So let''s play this out in the hypothetical. Suppose Joe comes in every morning and says to Mary, how are you doing? And Mary feels this is compromising her environment and its harassment. The supervisor is made aware of this by Mary and Mary says, Joe comes in every morning and it really freaks me out, he says how are you doing and I''m feeling uncomfortable. Now at first glance, this may seem, how can Joe come in every morning saying how are you doing be harassment? The supervisor may have to take prompt and confidential investigative action to take a peek at this. What is Mary talking about? They may need to position themselves in such a way that she can see Joe coming in and interacting with Mary. And when she -- the supervisor notices this and she sees Joe come in and maybe hovers over Mary''s personal space just a tad too close. And instead of saying, "How are you doing?" He says it like "How... you... doing?"A little bit of a creepy fashion. Now, Joe may need the action about training about personal space and how he interacts with a member of the opposite sex or somebody who is his junior on staff or whatever the issue is. That being said, we have a standard of, "I don''t know what is in somebody else''s head" and their perception becomes the reality. Mary''s perception of Joe coming in and saying, "How are you doing?" Was the reality of, this is uncomfortable for me. I think the same thing holds true when we look at the software of Google. I''m all for it, but where it comes into an issue is, if I Google somebody''s name, what do I get? Now I''m going to use myself as an example and if you Google me, you''re going to get me. There''s only one Joe Bontke in the world that I''ve found so far and my wife would say, "Thank God." And you see I have an EEOC Facebook, education and outreach page. It''s going to be a very different audience than my Santa Claus for the Jersey Village Fire Department, and that''s a picture of my grand baby when she was probably 18 months old. And this is going to be for my real friends and my real family and those people who I have had a long relationship with, so that I can speak freely about issues of likes and dislikes and concerns. This is not my work people. This is not the people that I interact with in my business world. I''m going to save that for LinkedIn. Want to join me? I don''t know who you are, but if you think linking in with me is a value, the more the merrier, come on board. Very different audience for all three of those groups: My technical assistance folks on Facebook, now the EEOC have its own one, so I''m going to direct people to that one more often, my own personal Facebook, my LinkedIn page. A last example is going to be my Twitter page. I''m only following 14, and 18 are following me. I don''t know where we''re going, though. That''s a problem; because to me, I''m just getting warmed up at 140 characters and that''s what is limiting me. Now, I have had more posts since then, but the idea is it''s not my cup of tea. In the Google realm, I''ve come across an application that is probably a wonderful company. From Palo Alto, California, a group that has an app called find.ly. And a few local retailers are using this as their application process. And I''m taking the position that if you''re using an app that requires you to have a Facebook page, where all of a sudden your resume are those things you have in social media, you may, in fact, be crossing some imaginary lines that in reality don''t exist. Nobody is forbidding anybody putting pictures on resumes or telling you on your resume what your gender is or the list of all of your friends or any information of clubs or services that you belong to, but Facebook does that. And when an application also does that, it begs the question, has the resume, in fact, gotten a little bit larger than it should be just for any given job?And my opinion would be, well, there are no laws, there are no illegal questions, I like to say. You can ask everything you want, but once you get that information, had you just given more protections to an employer than you should have. If you''re looking for the most qualified applicant, is that going to be problematic? It begs the question. I don''t have the answer yet. On Twitter, I''m seeing that I know of 200 million users. Twitter may claim to have more of maybe I should say active users. But did you know that since its inception in 2006, that the library of Congress has been acquiring and permanently storing every Twitter post. Now, let that sink in. Because that may mean that everything that has ever been tweeted out I have access to in the Library of Congress. And good, bad or indifferent, it offers, for those that have read George Orwell''s "1984" the big brother watching concept, remember that was years ago and that was a futuristic concept. I think we know, that yeah, the government will have an awful lot of our information at hand. Okay, that being said, everybody is entitled to their own opinion, not your own fact. Let''s look at some important elements: Importance of a policy. So one of the things I learned in Twitter is that twoosh is a word invented to describe a Twitter message that contains exactly 140 characters. A good friend of mine and a deputy director of the department, Marty Ebell came up with a policy of 140 characters of twoosh. The professional kind, authentic, represents us well. Remember you can''t control it once you hit "update." That being said, how many of us have a personal policy as to what kind of electronic footprints am I going to put out there for all my potential future employers to see? Maybe we thought about it and maybe we haven''t. Maybe people will just say, ah, youthful indiscretion; they didn''t know they were going to run for office, nobody had an idea that this is going to be important. And I think it is very important. I did a little unscientific study at a Texas A & M University to the student SHERM organization, that is, the society of resource managers. I offered an index card and I think there were 75 in the room. I would like you to use Smart Phones or laptops or tablets or any other devices here or your own backpacks of life experiences and knowledge and in the next two minutes on the index card, write down everything you can tell me about [at the time he was running for office] Congressman Anthony Weiner. That''s all the information I gave them. And then I shut up. And for the two minutes I walked around the room and watched these energetic, very suave students using all their devices to find as much as they can. I said when the two minutes are up, everybody passes your cards up and I had one of the students tally up what we were going to learn from that. Out of the 77 cards -- 75 cards, 60 of them said, "He wears briefs, not boxers." Now, the worst thing you''ve done is the first thing people will know about you, you would think we''re in middle school. Well, unfortunately, for Anthony Weiner''s postings, that''s the most information in a two-minute time frame that people can find out. You would think that if your name was Weiner somewhere in middle school you would have learned what to post and what not to, but I digress. Okay. Microsoft did this survey where they said 75% of U.S. recruiters in human resource professionals report that their companies require them to do online research of candidates, and many use a range of sites in scrutinizing applicants. So let that sink in.More than half, three-quarters of the employers are using some kind of an online search, social networking sites, photos, video sharing, personal websites, blogs, Twitter, online gaming sites 70% of U.S. recruiters report that they''ve had rejected candidates because of information found online, like photos, discussion board conversations, memberships, conversational groups. Let''s pause there for a moment and let''s take into consideration, fact. I gave you the example that there''s only one Joe Bontke. Now, the woman who said, "Thank God" was my wife, the love of my life, 30 years married this year. Joyce Smith is her name. Had we Googling her, we would have found there are 4,800 Joyce Smiths. Now, if a U.S. recruiter is doing a background search on Joe Bontke or George Smith, how do they know they''re finding the right one? If I have a stack of resumes or electronic resumes or 400 applicants for these two jobs, I have to cull it down to a sizable amount, there may be an unfair issue rearing its head where people with like sounding or same names come up with negative information. Another screening tool and another study said the numbers were a tad different, 65% of hiring managers google the applicants. 65% check social networking sites. 50% result in job rejections. And as many searches as I''ve done throughout English-speaking world, I found all sorts of proof that this is happening. Then in talking to the HR community, I have since learned quite a bit more. Specific to this webinar, I want to address the notion that employers will have potentially access to information, such as involvement in stakeholder group, people with disability organizations, sexual preference, cultural and religious identification that may in some form or fashion is less than comfortable for the decision maker. Now, what do I mean for that? What I have learned from the EEOC investigators going out and doing onsite research or anecdotally HR professionals coming to me saying, what do I do with this information? What the information very often is; I had alluded to the Google sleuth. It might be that supervisor who has the top five or seven or ten candidates for any given job that he or she has to make a decision on. And they spend X amount of time going into search engines and particularly Google because it''s the most popular, and Google searching as much information as they can narrow down for each of the applicants. And if they see something like, oh, John Doe rode in the MS150, and print out a picture of John Doe in the MS150 and right on that page "must have a disability" and then staple it to his resume. And then print out a picture from maybe Mapquest or Google Earth of the roof of a few of the candidates because we can tell an awful lot by somebody''s roof, or scan around the roof to be able to see maybe a Little Tykes house in the back saying she must have children; or maybe seeing a wooden ramp at the back door or the staircase on the side of the house. They must have somebody with a disability. Or looking at a long sign that may have a lawn sign that may have a candidate they don''t see so favorable. Any of that information is now part of the Google search. And we take the position -- you can''t ask about it in an interview. You shouldn''t be Googling it online. And the problematic issue is, nothing is reigning in the Google sleuth at this point. Next Slide, so let me introduce to you my lovely family. And these are all of us. My mom at one point in her life was battling breast cancer. She''s four years cancer free now, doing fine. She''s 85 this year. And on the far left of your screen is my smokin'' hot wife, Joyce, and next to her is Jackie, graduating from UT Austin, then me, my son, a reporter in little rock, Arkansas, and the girl he was dating that week is next to him. What can I do? Also, my oldest daughter Jillian and her husband Zach. And we''re all in this race, and at the time my daughter Jillian was leaving one job and interviewing for others. She''s a counselor and right now in HUD-ISD outside of Austin. And I said, "Take that picture down from Facebook". Why is that, daddy? Well, this shows that the Bontke women have a predisposition of breast cancer. And under those protected categories, one of them is GINA, the genetic information nondiscrimination act. We have a number of these cases at the EEOC, but because of our confidentiality, I can''t show you those pictures. I can show you this picture, because I have these people''s permission. And these are real life issues that are happening daily for people who have everyday concerns about health or concerns about membership in clubs or have all sorts of an open book like I am, that are being interpreted unfavorably by someone who has a little bit of information. From your watching of cop shows, you will know that if somebody pulls a car over and wants to search the trunk or when somebody wants to come in to somebody''s house, there is an amendment to the constitution called the Fourth Amendment which prevents unreasonable search or seizure. So our home is our castle. And that''s one area of the law that we think, "Doesn''t this prohibit somebody from looking past what I have enabled myself to put out there?" And I think the short answer would be, no. There are no laws in the constitution that protects us from anything on the Internet that I''ve been able to find. If we looked at common law or electronic communications act of 1986 or the Federal Stored Communications Act, would any of those limit the rights of employers regarding interference with the privacy of employees? And I think the Fourth Amendment really doesn''t extend to private employees. Employees don''t constitute state action. So we''re barking up the wrong tree here. Then we have other federal agencies that have taken a position, one of them would be the NLRB, the National Labor Relations Board, it enforces an act called the NLRA, the National Labor Relations Act. They take a position that this clicking the "like" button on Facebook constitutes what is a term of art called concerted activity. Meaning if I am an employee and I have people who report to me as my friends on Facebook and those friends on Facebook "like" something, or, I as a supervisor like something, does that mean we have communicated about our employment in a favorable or unfavorable terms and conditions of employment? And Hispanic united of buffalo decision says, yes, it does. Is a Facebook "like" constitutionally protected? In Bland v. Roberts, It has taken a position that it may in fact be protected speech if I''m talking about those issues of my workplace. If we go back to 1987, in the ''87 concept of the Supreme Court first recognizing that unreasonable search and seizure protection before the Internet where an employee has an expectation of privacy about certain things, like his or her desk or file cabinets. Now just pause for a moment, what has changed? Because I don''t think that today in 2014 that my employer by any means would think what is in my desk or my file cabinet or my hard drive or any time I''m using Wi-Fi from the office, any of that is protected. So what has changed is maybe perception. In 2010, a SWAT team officer who was recently broken up from his girlfriend used a department issued device. I''m calling it a pager here, but it was kind of a highfalutin pager, and in texting with his girlfriend, he said, by them having access to that was a violation of the Fourth Amendment. But it was the City of Ontario''s pager. So it was a moot point. So, you know, if we draw a line in the sand at this juncture and say, let''s think about every employer, whether public or private, have a clearly drafted policy, giving employees notice that they really have no expectation of privacy in company electronic equipment, whether it''s for emails, phone logs, detail text messages, postings on social media, things they''ve sent up to LinkedIn, because any time you''re connecting your employer to any of that social media, you''re in essence now wearing, in quotes, their "logo" on your shirt and representing the organization. And I think most of us often forget that element. The Electronic Communications Privacy Act of 1986, primarily federal law addressing the concerns. Exceptions are interpreted to mean that an employer maintains its own email system and assumes provider status. So a message in transmission or a stored message are the two areas that very often came into the concern. It doesn''t seem that this is going to be the area that any law is going to come about. And then let''s look at some facts. How safe is the stuff that I''m putting out there? This is a fascinating piece of data that we could call fun facts from SplashData''s list of the 25 most common passwords found on the Internet. "123456" was number one. Bumped from the number one slot is the word "password". And then number three is "1 through 8". And then "QWERTY" or "abc123". A little fun fact is "Iloveyou" is number nine, "trustnoone", and somehow "monkey" made it to number seven. So are we our worst enemies? I don''t know Then under the Federal Stored Communications Act we have a little fun fact of the Wiretapping Act. And often we hear of things like this like, "Can I bring my cell phone to the meeting and record the conversations without anyone listening?" And I''m in Texas right now, so, yes, that''s completely legal, as it is in 26 other states, but you really have to check because this is afforded by state''s rights. And a little fun fact that the conversations between senator and Monica Lewinsky, some were admissible and some were not depending on where the call originated from, whether it was Virginia or Maryland. So how this evidence is eventually coming into court in the long run often comes into play. Remember, we have no laws yet, and some are emerging. So don''t gain access to employees'' website by receiving private information through another friend or by going through a person or employee''s friend list. We actually have legislation here in Texas with regards to cyber bullying where if somebody poses as a non-existent person or somebody not themselves, they can be held liable for that type of bullying. And strangely enough, the people most hindered by this, by the testimony, were children with disabilities who were bullied online by other children. And while I was watching this pass the legislature, I thought that this new platform of the World Wide Web has become that playground where the bullies still exist. Now they''re anonymous. So when we look at issues arising from monitoring employees, we''ve seen throughout history that there have been- quite a few of them are applicants next.Well, back in 1996, there''s a case called Smyth versus Pillsbury where a company''s interest in preventing inappropriate, unprofessional -- many type of crude or rude comments or even illegal activity over email outweighs an employee''s privacy interests. Which in the grand scheme of things is kind of an interesting line in the sand, but this may, in fact, be a moot point because this wouldn''t come into play because we don''t know where something would have originated from on the Internet always. Sometimes it skips through many servers and it''s next to impossible to find. I have alluded to the National Labor Relations Act earlier, and if you were to see this close-up, the fourth bullet down, under the National Labor Relations Act, you have a right to discuss your wages and benefits and other terms and conditions of employment. And this is very often taken as a license that I can talk about work to anybody I want to. And very often I hear it on the radio, that you''re forbidden to talk about your wages, or, we don''t want airing our dirty laundry outside. Well, the Wagner Act, this law that has been around since 1935 actually offers that protection. And the National Labor Relations'' interpretation of it really comes to play in this view. I''m giving you the U. S. C. number 29-157. This is an important crescendo where this federal agency''s view is that monitoring employee''s social networking activity has the potential of creating -- this term of art -- a chilling effect on employees'' communications regarding these terms and conditions of employment. Now, how could this come to play? And the NLRB''s web site has many examples, but I offer the caveat to audiences that if you''re a supervisor or a manager or a lead and you have friended people who report to you, I suggest you unfriend them, because of the number of cases that are on the horizon where people say, because she "liked" this or because he "liked" that or because he''s interested in this, that''s why I have been retaliated or harassed or discriminated against, and now in their mind it''s evidentiary. And we''ve had a number of examples of that. I''ll give you a real one from 2011 where a BMW dealership on the Miracle Mile, which is just outside of Chicago -- maybe it''s in the city limits of Chicago. One of the salesmen was unhappy that on customer appreciation day they were going to offer Big K Cola, the off brand from Kroger and turkey hot dogs and white bread. He said, "This is low rent. We''re the BMW dealership we should have a higher caliber of free food for all our potential customers" And by tweeting this out, he got fired. Now, this is a non-union case. This is concerted activity because it involves discussion of employees about a condition of employment. How they would be represented to the general public. By the way, long story short, he gets his job back, gets a settlement. Why? Because there is protection for this. And whether or not everything will have to go to a case, I do see an ebb and flow that, yes, I am able to speak freely. I still have that first amendment freedom of speech. However, the interpretation of that freedom of speech may fall flat in some people''s minds. It''s really why I started with the generational differences, because I think I have to always know my audience, always know the comfort levels of what I am talking about to my different audiences, and how those audiences are seeing the particulars of maybe what I am involved in. I am all for people getting a freer or fairer playing field, but I don''t often know what is acceptable in somebody else''s mind. If we look at a best practice, maybe it''s something of an Acceptable Use Policy. And while I''m not here to create policy with anyone, I''m going to offer you in here and in the archive of this PowerPoint, the next three slides that will offer basic content of what we''re urging employees to take work-related complaints to HR before airing them out into the town square of the World Wide Web, clarifying that will be imposed including and up to termination, establishing reporting procedures reminding employees that email systems are not private. Requiring employees to acknowledge that they have received it, prohibit unauthorized transmissions, define discipline, define whether email is automatically deleted after a certain length of time. And basically fill in the blanks here with regard to what you are allowed and not allowed to do with the computer that is a same tool you may have sitting on the couch in your pajamas in the evening that is now on your desk at work. Two very different uses of the same tool. Here is the problem, Viktor Mayer-Schönberger once was quoted as saying "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, for giving becomes a difficult undertaking. I think it''s the notion of the Anthony Weiner exercise where there isn''t a second chance in the Town Square of the World Wide Web. Everything that you will see or do will have some form or fashion that the worst thing you''ve done is the first thing people will know about you. So as a dad of three kids -- well, all adults now, I have taught them to be careful, be discreet, be prepared. I think as my parents had taught me, it''s one of those things that we pass on. I think it''s the reminder that at any age, those electronic footprints that we leave behind can often be misinterpreted. And in that misinterpretation are we doing something that can come back and haunt us? When an employer is basing hiring decision on race, color, religion, nationality, age, sex, disability, it may be against the law but how is that proven? When information discovered leads to employer''s knowledge of information that would be illegal to use against an applicant in a hiring decision. In red, things you cannot ask at an interview are the same things an employer cannot research. And why that is so important to this audience where people with disabilities who are looking for jobs or who are looking for better jobs or who are very involved in different community organizations, will the decision maker in fact see that information and not be as enlightened as many of us are with regard to issues So things to ask yourself when using social media: Is it valid? Does this information predict job performance? Is it job-related? Was the information that my children left behind them while they were in college something that employers held against them? I don''t know. They all left college with jobs, so I guess I''m blessed. Is it legal? Can''t find any laws yet that have been passed. Information posted on the Internet is often considered, in quotes, "public domain". It opens an organization to the perception of using that protective information. But I caution to the sleuth who is stapling those found informational things that is swaying a decision one way or another to the application packet. Once they do that, they have to keep it for two years or it''s a record keeping violation, and those are the things that an investigator finds or stumbles upon that may not be worth it. So it''s probably worth considering a few protections like an off-duty conduct policy Especially if I''m connected with an organization, have I checked that cyber reputation? What is the Google search turning up for me? And this is not happy stuff very often. It''s usually things that can be interpreted less than appropriately. What is discoverable? I guess I haven''t found anything that isn''t discoverable yet. If it''s there in some keystrokes, it could be subpoenaed by an agency like ours. So it''s everything that exists. In 15 years'' time it has really changed drastically. I remember first coming to the agency where one of our cases probably took up about 80 storage boxes, and those 80 boxes now would fit on a flash drive. And that was just applications that they were looking at for a class case. Those realities of the fact that we have become faster to research this information is not necessarily unique to any other law enforcement agency but it seems like the electronic footprints that people leave behind may be their own worst enemies.So there''s a unique problem with social networking activities because the tool, like I said earlier, the tool that is on my desk, blurs that line between work and when I''m using the same tool at home. We often don''t think of the fill to our edit, whether it''s the Smart Phone I have in my hand or on my commute in to work on the bus, I''m texting or status updating or tweeting. The audience I don''t even know how many people are getting it or seeing it. I think LinkedIn is the only one that is kind of pulling the curtain back and you can see who has looked at your stuff the last couple days. But what is immediately there for the public viewing? I got up at the middle of the night and took a picture of the red moon last night and posted it to Facebook and went back to bed. Lo and behold I woke up to a number of people who were also doing the same thing. So while it''s less formal, I think we''re less guarded and careless. Admitting to going off to a cruise or a trip or on my way here is just telling folks that I''m potentially leaving my house empty or that undesirable information is out there for the underworld to be able to see. Or is my association with some of the wonderful organizations connected to myriads of conditions or disabilities? I have dyslexia and dyscalculia, and my ability to be part of those organizations; does that make me less of an applicant? Because it''s not on my resume but it''s in my electronic footprints. I don''t know. I don''t have a good answer for it. In when we think in terms of background checks we often think of it as does this meet job readiness and is it consistent with this necessity? So the EEOC puts out guidance on this with regard to criminal background checks and we get a lot of press on this that people are telling us we, in the government, the EEOC is saying, you have to hire sell-ins for jobs. I don''t think anyone ever said that. I think what is being said and has been from our guidance for the past 13 years is to look at the nature of the crime that the conviction was for. How much time has lapsed? And what is the job the person is applying for? Is there a consistency with business necessity? Somebody who is a child predator is never going to drive a school bus, is never going to work in a day care or a school system. That''s a given. If somebody had a youthful indiscretion of minor possession and now it''s 20 or 10 or 30 years down the road, are they the same person? And should it be held against them? I think we often have to dump our backpacks and look at the rationale as, in this business decision, do we keep this information? Again, when I''m talking about criminal background checks we have to do individual assessments. I''m trying to get more of the HR community to understand the same holds true for all of our Google searches. But in the criminal background check world we look at such as: is there a name change? Was there an educational opportunity? Was there a long successful employment history since the conviction? What was the length of time? How old were they? Were there rehabilitation efforts? Was there deferred adjudication? Are these multiple postings or most county documents for the same offense? Is it, in fact, identity theft? A whole array of things may come into play. I think it was the ''02 Bureau of Statistics study that says 65% of offenders under the age of 18 released were re-convicted within three years. By contrast, 30% of ex-offenders, 35 years or older during the same period of time were not. So, you know, there''s obviously a maturing element of it. And then tongue in cheek sometimes we have to realize that between Snoop Dog and Martha, remember only one of them is a convicted felon. Be careful of our own stereotypes and those rationales. Martha would not like that slide at all.Statistically, do we know our own state''s history of a snapshot of race, religion, sex, disability, age, national origin, and retaliation? What are those statistics? And our website would show you those by state. I''m just pulling up Texas here as an example.Trapster is another great piece of software, an app that is free. I''m not here to sell it or encourage you. I saw it on my son''s phone. I said, "Why you need that?" He said, I get a lot of speeding tickets. Wouldn''t there be nice to see what the EEOC was looking for? And there is. It''s not in an app. It''s called our Strategic Enforcement Plan. I want to run through six of the elements that we are using minimal resources towards. Most people have the perception, "You''re a huge federal agency". Did you know there are only 2200 of us nationwide? There are only 19 that do the job I do, as the outreach manager, educational person. And that our budget is the equivalent of a McDonald''s cup of coffee per citizen once a year. So in putting that into the notion of minimal resources, these six areas that we''re trying to eliminate: systemic barriers of recruitment and hiring, we''re looking for employers who are using some type of exclusionary barriers to consider that individual with disabilities shouldn''t work here, or women, or older workers, or ethnic or racial minorities, are excluded from hiring. And some of what we''re finding is those electronic footprints. So trying to look towards the vulnerable workers who may be unaware of their rights under EEO; Or are reluctant or unable to exercise them with regard to disparate pay, or segregation, or harassment, or the common modern day slavery of human trafficking that is prevalent. And the third issue is the ADAAA, this emerging issue that in last year''s statistic is one of the higher cadres of litigation that we actually targeted. Under the third heading, the audience we''re here today to talk about is, this emerging issue is better protections than the ADA offered where very often we had to show proof that a person was a person with a disability. It has become much, much easier and now all we have to determine is was that individual accommodated. So I very often encourage people to use our process. While there is per say no protected category for gay, lesbian, bisexual or transgender, under Title VII provision, which is sex discrimination, very often the harassment issue is coming forward and it''s based on sex, a sexual identity, a sexual persuasion. And that''s still sex discrimination. Issue 3, pregnancy discrimination, which fascinates me that we still discriminate women during their child-bearing years. Yet we all have belly buttons and we all came from a pregnant woman. It is odd that we still see this kind of discrimination. And while the date has just passed last week, equal pay day, some of you may have recognized it and some of you may have just seen it come and go. I produced this before, before I realized it was going to be after, but April 9th is the day women had to work in 2014 to earn what men earned last year. And I have assisting me this slide my granddaughter Kate who is working that kitchen. I had to put that kitchen together and if I had anything to do with it, that is the only kitchen she will ever work in, because don''t we have to leave the world better for those behind us. And my hope is that in my ten years that I still have to work, I can make an effort where equal pay day will be recognition of how women used to be treated and no longer problematic in society.And the last two issues, preventing access to the legal system, where people are asked to sign agreements that you will be forced into arbitration or some kind of mediation, in lieu of invoking your civil rights in some other entity. And then combating harassment on all issues and doing what we''re doing here, targeted outreach specific to the community of people with disabilities is actually part of the strategic plan.All of that being said, one of the things that I promised at the beginning was to at least scratch the surface to be able to show some of the realities that are there and some of the things that we can look towards as a solution or a concern or how we can best move forward from here. And I want to show you a few companies that are doing different services. And the first is reputation.com. I first became aware of it through NPR, probably a great company; I don''t have a relationship with them. But part of their mission is to promote you on the Internet. Create and establish an online presence, look better to a HR directors, etc. So what they will do is clean up your electronic footprints to a degree, and do searches so that you look better in a Google search. There''s a fee for this. I''m not recommending anyone to do it. I''m just saying this happens. And I guess people are seeing the value of that. Or careerexcuses.com. The first time I came across this I was fascinated, because in the box here you''ll have you have a bad reference, a weak resume, were you fired? We can help. We will act as your past employer and have operators standing by to give you the great reference you need for any inquiries. Join now and we''ll be able to create a career with work history and pay raise you see fit. So this is not illegal. This is somebody who will in essence lie for you, for lack of a better word, or embellish your resume. My wife and I spent a lot of money sending our children to college and all we needed was an account with this group, strangely.Or the last one, fakeyourjob.com. This is an interesting group where you think, what does it do? You really have to go to their frequently asked questions. Under the FAQs, they say -- the first one, is what you are doing legal? Kind of a scary thought when the first question asked is, is what you''re doing legal? In short, yes. People may find it unethical, it is legal as long as you''re not trying to defraud or fabricate yourself to a local state or federal government. Can I get arrested or go to jail for using your service? If you''re doing this for employment or trying to find a place to live, no. However, if you''re trying to deceive the government, you can get fired or go to jail. Know that we ask for references or have phone numbers and did you know that for a very low price you can disguise your Caller ID so if I''m given you phone numbers, they could all be ringing on my iPhone and my voice could even be altered by this software and my Caller ID could be changed to whatever company I told you they were. Or the last example where too confusing -- we had the guy who went out and bought three throwaway phones, labeled which companies they were and answered them accordingly. So kind of begs the question that when we go through an array of information here, what is truth? How do I determine what is real?And this is a very difficult thing to talk about because if I''m in the Town Square of the World Wide Web, you have seen Madison Avenue use this. Of course it''s true, I read it on the Internet. And there''s a great quote from Abraham Lincoln that says "Everything on the Internet is not true," which I just kind of smirk at because the rationale here is how do we come to truth? So I''m going to conclude with a bit of a gimmick and I''m going to, in a second put a paragraph on the screen and I''m going to ask you to read -- you don''t have to read it. I want to leave time for Q&A. Count how many of the letter Fs are on the screen. Hold that number in your brain. You will possess a truth and know what you saw. Count how many F''s, like in frank are there. Hold that number in your brain. And depending upon how many you saw, some of you would have seen three. Some of you would have seen four or five. Maybe some even six or seven. There were eight.The reality -- next slide -- is your perception sometimes your truth? So sometimes we have to take another look at what we think we know. And in conclusion, all I want to offer is, is the picture that I have left on the Internet my best resume? And all too often, only we can answer that. So I''m going to, in the remaining 12 minutes here, offer any questions, comments, concerns or complaints and we''ll be standing by to answer them.
So, ladies and gentlemen, if you have a question at this time, please press the star then the number one key on your touch tone telephone. If your question has been answered and you wish to remove yourself from the queue, press the pound key. We''ll wait to see if we have any questions. Once again, ladies and gentlemen, if you have a question at this time, please press the star and the number one key on your touch tone telephone. It does look like we have a question from the line of ______. Your line is open.
Say, I put something on the Internet and that has to do with my schooling, but then it doesn''t look quite as presentable as it should look. Whether capitalized or not. What should I do?
It''s a very good question, that if something is out there that you''re not happy with, how do you get it back? That lends the question, if it''s already connected to somebody else; we''re going to have a difficult time pulling it back. I think changing it to the best of your abilities is appropriate, but I''ll give you a quick example. I used to be the associate director of HR at a hospital here in town called ______ and at that time a picture of me was put out on the Internet. I don''t look like that anymore. I''m now 23 years older, much grayer, and I show up to speak someplace and they find that picture of me on the Internet and people are wondering why he sent his father. And I can''t get that picture removed. Or if I wanted to go through a reputation.com it would cost an awful lot of money. So it depends upon how egregious is the issue and how much of the web, the actual web, those octopus tentacles or those web fibers are out there that I''m able to pull it back in. I hope that helps
Oh, yes, it does
Thank you for listening.
Okay, we''ll go to a couple that came in just now. The first one that just came in: What are your thoughts regarding photos and comments other individuals put on the web about you?
You know, it''s as bad as the realities of, we have this availability of anonymity on the Internet. Most of you are probably aware that the Klu Klux Klan was prohibited to spew hate while hooded. In other words, take off the anonymity. It seems as if much of the comments and opinions that are offered in newspaper articles and Twitter posts are down under the hood of anonymity that lends itself to, "I''m not responsible for any of these actions" and it gives the bully, the harasser, the hater, the discriminator, full rein. I don''t think there will be actions to remove that, although certain newspapers have decided not to allow comments to be made without authorship. And I think that''s a good thing. That if I can''t at least stand behind my handle or my actual name, then I shouldn''t have a voice. And I think that''s removing the hood of anonymity. But we see dissing in a whole realm. At the EEOC our lives have changed drastically in the last ten years with regard to evidence coming in of harassment retaliation and discrimination from texting and sexting and all sorts of electronic evidence that comes into intake.
Okay. Another question. What if a job seeker experienced fraud when someone posed as them on the Internet posting harmful things about them? How would that job seeker recreate their electronic footprint?
That''s a really difficult one and an excellent question. Because the job seeker, seeing something there, whether it''s them or whether it''s somebody who has a similar name, I do a lot of speaking with a young lady who had a common name, and unfortunately somebody who had her name had a terrible criminal record. A hired attorney in one part of the country and a crook on the other side of the country with the same name, your example is when someone is posing as another person, there are state laws against that as I gave earlier, but how do you get to the table of get to the interview to be able to combat that saying, "There''s stuff out on the Internet about me that I''d like to address". And I think that might be worthwhile if given that opportunity. If the Google sleuth is finding that information before you had a chance in the interview seat, I don''t know if there''s much you could do about it. But that is a very unfortunate one.
Okay, one that came in a second ago. Do you recommend adding an electronic access policy to personnel manual?
Most definitely. Acceptable Use Policy that I''m giving you, or if you just want to do a search on it, most universities have their policies online. I like to offer to folks, edit them, make them your own. Put a work group together and put into policy how we will use electronic content and what we will do with it. Why is that so important? Why everybody understands the limitations or the breadth or scope of it may in fact, be a comfort level with how much I understand. And I have bumped into people every day saying, I''m not going anywhere near that. I''m not going on Facebook. I don''t have anything to do with it. I don''t want that stuff out there. And that''s their right. I have rekindled relationships from grade school. I chat with family over in the Ireland and the UK and I''m able to do that for free and I enjoy that element of it. Am I giving up some to gain some? Maybe, but I think we take into consideration, what can I get to make my own? And for those of you in need of a policy, find somebody''s and edit it. We used to call it plagiarism. Now we call it word processing. I would encourage it. Or if somebody is looking for that information, there''s a site of resource managers site that has some examples. HRhero.com has more. These are all free places to look. My hope is that the EEOC will come up with something of a policy to direct people to it.
Okay. do we have questions that have come in on the teleconference at this point?
At this time I''m not showing any further questions on the telephone.
Okay, we''ll go right to the next question. If I learn unfavorable information through a Google search, what aspects may I take into consideration? For example, if someone has many references to drug or alcohol use and abuse, may I decide not to interview or hire him or her?
There is no laws against this. So is it valid? Is it the real person? Is the picture that you''re seeing them acting as a 16 individual or is it, in fact, not baby powder on the mirror. These are all real concerns, but I go back to that pragmatic approach. If I can''t ask it in an interview, I can''t research it online. What if I stumble upon it online? If I''m using it as a decision maker and I can''t sit across from the table and ask the person, I''m going to say, take it off the table, because I may have stumbled upon it and it may not be valid. And I would question the individual first. Then if they''re in rehab, they''re going to be protected under the ADAAA and that''s also a concern, because now I''ve presumed that they had a disability in that third prong of ADA will give them protection. So the what-if clause rears its ugly head here and I want to keep you out of our offices through this preventive measure of good stewards of the policy and practice.
Okay. I think we have time for one last one. It''s a pretty good one, Joe. What if a search committee member decides to Google a candidate and informs the search committee? Does the committee now have to Google the remaining candidates to ensure they''re providing equal opportunity?
That''s a really good point. If I Google one do I have to Google everybody? While I''ve never seen a policy like that, it is in essence treating all your applicants the same way. It''s kind of why I throw out that teaser that if you Google Joe Bontke, you get him. If you Google Joyce Smith, you''re going to get 4,800. The rationale is we''re not all open books because how standard our name is. That''s the unfortunate variable. But I think a good mechanism would be, be as consistent as possible. And if you didn''t get an opportunity to ask questions, you see on the screen there my name, my address, my office, even my cell phone. I really am as accessible to you as I can be. If I can''t find the answer, I''m going to point you in the direction where I think you''ll be able to find it, because I''m from the government. I''m here to help. Thank you for your time and attention.
Okay. Well, actually, Joe, I think that was our last question. I want to go ahead and say this actually concludes today''s ADA audio conference program. We realize that some of you may still have questions for Joe, so we apologize if we didn''t get to them. You can, as he just said, contact him or email us or your ADA center if you still have questions, we''ll be happy to get those answered.We want to thank Joe, again, for sharing your time and your wonderful knowledge with us today. I think everyone certainly learned a lot from our program. Just a quick reminder that the digital recording of today''s session, as well as a written transcript will be available for viewing and downloading on the www.ada-audio.org website within the next 10 business days.Thanks again, everyone. You may now disconnect from the platform.