Legalities of Using Social Media When Hiring

Social media is a huge part of life now, and it has significantly changed the way businesses work. Companies can now post recruitment opportunities on social media and even conduct background research on job candidates.

Equal Opportunity Employment Issues

If you are using social media for recruiting, that gives you instant access to the public information on their social media account. This can give you a bigger picture as to who the applicant is, and who they might be as an employee. The problem is that once you have viewed their social media profile, you are now aware of their “protected characteristics,” since these are usually part of an online profile. These characteristics include their age, sex, religion, disabilities, and sexual orientation; most of these are not always evident in an interview. Having knowledge of these protected characteristics can potentially impact your interview questions and hiring decisions.

Social Media Decisions

Using social media can give you better insights into your job candidates, and show you things that do not violate EEO, and you can use in your decision-making process. For example, if someone’s Facebook is full of racist rants, you can use that when deciding if you want to hire them.

If you find something worrisome, print it out, so if they challenge the decision later, you have evidence of the post. You should consider giving them the chance to respond to worrisome posts before you make your final decision; there is always the chance the profile you are looking at is faked or has been hacked. Social media accounts do get hacked fairly frequently these days.

You can also learn valuable things from their social media, like their regular volunteer work in a related field to what they are applying for, or thoughtful tweets that show their knowledge in the field they are applying for. Even if you find something helpful on their account, print it out as well so there is full documentation of what was used in your hiring decision.

These are things that reflect the applicant’s decision making and can reflect on their character. If you find social media posts full of ignorance or racism, or posts that show their experience in the field, you can treat them as if you learned of these things during the job interview. Those types of things are not protected by EEO, so you should be safe. If you ever feel unsure, consult a lawyer, they can help you determine if including those posts in your decision is legal.

Legal Complications

It is a good idea to have someone in HR who is not interviewing the candidate be the one to review their social media accounts, since they are better informed about what can and cannot be used to make the hiring decisions. This will also keep you, the interviewer, impartial to the candidate when you interview them.

Make sure you remain consistent in checking social media accounts. If you decide to screen applicants, you must screen all of them or none of them, unless an applicant does not have a social media profile; that is rare, but it does happen. Inform job candidates that you will be reviewing their public social media accounts.

Ignore things others post about your candidates. They cannot control what the people on their friends list tag them in or what they say in comments on posts. The people on their friends list should have no influence on your social media screening.

Service Dogs and Emotional Support Animals in Public Spaces

It has become increasingly more common to see people out and about with emotional support animals (ESA) and service dogs. While they may not appear to be different on the surface, there are different laws that apply to ESAs and service dogs that are important to know for your business.

Service Dogs

According to Title II and Title III of the ADA, “A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” These dogs are trained to help the visual or hearing impaired, pick up dropped items, help with seizures, conduct room checks, turn lights on, and much more.

Miniature horses have been seen as service animals too, and while they are not included in the ADA’s official definition of a service animal, the ADA has made a provision in their regulations to cover miniature horses.

They are not required to wear a vest or carrying identification, so you may not know at first glance if the dog walking into your business is indeed a service dog. A business can ask if the dog is a service animal and what task they are trained to perform; they are not allowed to ask for identification for the dog, and they cannot inquire about the handler’s disability.

A service dog is protected by the ADA and is allowed to accompany their owner into any public place, as long as they are under control. A business that does not abide by this can be fined.

Emotional Support Animals

An Emotional Support Animal provides comfort and companionship to a person with a mental health condition. A doctor or mental health professional will literally prescribe an ESA to their patient. They are not required to undergo the extensive training that service dogs are required to undergo. According to the ADA, ESAs, comfort animals, and therapy dogs are not service animals.

The Fair Housing Act protects people with ESAs; landlords are required to make accommodations to people with ESAs. They can ask for a copy of the letter, but they cannot charge you additional fees or deposits, nor can they ban the breed of your dog, or whatever type of animal your ESA is.

ESAs are also protected under the Air Carrier Access Act (ACAA), which allows someone with an ESA to have it fly in the cabin with them on flights. This has caught a lot of media attention as people have attempted to bring a wide range of animals on flights with them, including peacocks. United Airlines and Delta Airlines banned ESAs that are not dogs or cats from riding in the cabin last year, and not allowing them at all on longer flights. Multiple airlines have implemented policies that require someone to inform them of their intention to fly with an ESA in advance and provide evidence of the animal’s health and basic training.

Does Your Business Have to Allow ESAs?

An ESA does not have the same rights as a service dog does; they are not automatically allowed in a business and businesses can legally refuse to allow an ESA to enter. A service dog “in training” is not protected by the ADA, though some states do have laws that say the dogs should be allowed into businesses. You can ask someone with a service dog or an ESA to leave if their dog is barking, endangering other customers, or otherwise misbehaving.

As a business owner, you are not required to allow your employees to bring their ESAs to work with them, and you can ask for verification that they have been prescribed an ESA. In contrast, you have to allow your employee with a service dog — or miniature horse — to bring their animal to work with them.

Google v. Oracle: The Copyright Case of the Century

The U.S. Supreme Court has taken up a major ongoing copyright battle between Google and Oracle over the ownership and use of application programming interfaces (APIs). The APIs allow computer programs to communicate with each other and specify how information is processed and shared.

In the lawsuit, Oracle claims that Google infringed on its copyright by copying the company’s APIs, whereas Google says no one owns the APIs. These APIs were created in 2006 by Sun Microsystems, a copy which Oracle purchased in 2009. Google used the code for the APIs when it created the Android operating system and says APIs are not original expressions that are protected by intellectual property law.

Google is arguing that Oracle is attempting to “control and own standard open source functions that all developers rely on to create software compatible with an established platform, like Java.” Multiple legal scholars have signed amicus briefs agreeing with Google’s position in this battle.

In 2012, Judge William Alsup of the Northern District of California ruled that APIs are not protected under copyright law, knowing that if they had ruled in Oracle’s favor, the company would have been allowed to tie up “a utilitarian and functional set of symbols” that is the basis for many of the programs we use today. Where “there is only one way to declare a given method functionality, [so that] everyone using that function must write that specific line of code in the same way,” coding cannot be copywritten.

Oracle appealed the ruling and the case moved to the U.S. Court of Appeals for the Federal Circuit. In 2013, computer scientists filed an amicus brief, asking the Federal Circuit to uphold Judge Alsup’s ruling. Instead, a year later, the Federal Circuit reversed Alsup’s ruling and said Java APIs are copyrightable.

A few months after the Federal Circuit’s ruling, Google filed a petition with the U.S. Supreme Court, asking them to review the ruling, and another amicus brief was filed by computer scientists, asking the Supreme Court to review the ruling and reverse the ruling, reinstating Alsup’s original ruling; the Supreme Court denied the petition.

This petition was denied in 2015, and the case went to trial in a district court where Google sought the fair use defense for the APIs, and the jury unanimously agreed with Google’s fair use defense in 2016. So, Oracle filed another appeal.

The Federal Circuit Court reversed the jury’s verdict in 2018, after having previously said that this was up to a jury to decide, and said that Google’s use of the APIs was not fair use. Google petitioned the court to rehear the case, and the Federal Circuit denied Google’s petition.

Google filed another petition in January 2019, asking the U.S. Supreme Court to review both of the Federal Circuit’s reversals. Finally, in November the Supreme Court granted Google’s petition. Oral arguments should begin in March, and we may have a decision by June.

The ruling in this case may end up being the deciding factor on exactly how much software can be subject to copyright laws, and it will likely define the way the fair use defense is used in the future.

“This is the copyright case of the century,” said Stanford law professor Mark Lemley, who has represented Google in copyright matters but isn’t speaking for the company in this case. “However it is decided, it has the potential to reshape not only software copyright law but copyright doctrine more generally.”

Having open APIS is what allows programmers to develop software that will work across platforms. It also allows them to update old programs, even if the program was abandoned by its developers. If the Supreme Court sides with Oracle, creating new programs will become much more expensive, people will become less interested in learning new programming languages, people will be trapped with outdated software that requires expensive upgrades, and it will become more difficult to break into the software market.