Social Networking and Employment

I got this article from another HR practitioner and it just makes me realize how we don't have these protections from discrimination here in the Philippines. Tsk tsk tsk.

Employers That Use Social Networking Sites Face Legal Risks
by Ron Brand and Todd Scherwin

More and more employers are using social networking sites such as MySpace and Facebook to obtain information about current employees and job applicants when making personnel decisions. Many employers believe it is essential to do so in light of potential liability for negligent hiring and retention. However, employers that use social networking sites in such a manner need to be aware of the legal risks.

Discrimination and Retaliation

Employers may be subject to potential liability for violations of state and federal anti-discrimination and anti-retaliation laws. In California, for example, there are 14 different classifications called "protected categories" on which employment decisions may not be based. These include sex, race, disability, sexual orientation, marital status and national origin. As such, if employment is denied or an employee is terminated based on one of these protected categories, an employer faces the potential for a discrimination or retaliation lawsuit.

For example, what if an applicant discloses in her Facebook profile that she is suffering from cancer, is a homosexual and is from Guatemala? What if the talent manager knows this information prior to interviewing the applicant and either decides not invite her for an interview or to not hire her? If the applicant later alleges she was denied employment based on a protected category and files a lawsuit claiming discrimination, the employer will have to prove there were legitimate, nondiscriminatory reasons for not hiring the applicant. Of course, it would be difficult for the employer to prove it did not consider any of the applicant's protected categories in making its hiring decision.

Invasion of Privacy

Employers also may be subject to potential liability for invasion of privacy. For example, suppose that, in conducting a random check of an employee's Facebook profile, an employer notices the employee using marijuana in posted photos. The employer then terminates the employee. The employee files a lawsuit against the employer alleging the employer invaded his privacy since he believed his Facebook profile was private.

However, for the employee to be successful on an invasion of privacy claim, he would have to demonstrate he had a reasonable expectation of privacy in the content posted in the Facebook profile. The employee would no doubt have a difficult time establishing this when thousands, if not millions, of people had access to his Facebook profile.

However, what if the employee had made his Facebook profile "private" or for his "friends" only, and the employer gained access to the profile by becoming "friends" with the employee simply to obtain information for making personnel decisions? Alternatively, what if the employer used a fake identity to become "friends" with the employee to gain access to his "private" Facebook profile? Conduct such as this would make the employer susceptible to a liability for invasion of privacy.

Federal and State Fair Credit Reporting Laws

Federal and state fair credit reporting laws, such as the Fair Credit Reporting Act (FCRA), require an employer to obtain a job applicant's or employee's consent before it engages a background screening firm to conduct a background check. It also requires certain notices and disclosures to the job applicant or employee regarding the background check. While the FCRA generally does not apply to situations in which an employer uses social networking sites without engaging a background screening firm, it may apply to situations in which an employer uses social networking sites in conjunction with certain workplace misconduct investigations. Some states' fair credit reporting laws provide more protection to job applicants and employees than the FCRA.

Off-Duty Conduct

Finally, using information obtained from social networking sites can be problematic since some states have statutory protections for workers limiting the types of off-duty conduct - conduct outside of work - employers can consider in making personnel decisions.

While there is no simple answer to the question "Should employers use social networking sites to make personnel decisions?" one suggestion for employers that choose to do so is to have policies to ensure all applicants and employees are treated similarly. For example, if the employer searches MySpace or Facebook prior to considering an employee for a promotion, the employer should have a policy that explains that, and it should applied equally to all employees.

Ultimately, employers that decide to use information obtained from social networking sites to make personnel decisions should carefully weigh the benefits of the information obtained versus the legal risks involved in doing.

[About the Authors: Ron Brand and Todd Scherwin are attorneys in the Irvine, Calif., office of management-side labor and employment law firm Fisher & Phillips LLP.]