Lawyers Warn Facebook a Risky Tool for Background Checks

By Staff Report

Apr. 4, 2008

Employers’ growing use of social networking sites such as Facebook and MySpace to scrutinize job applicants could lead to charges of employment discrimination and litigation, experts warn.

    Observers say that without adequate policies in place, employers may be leaving themselves vulnerable to charges that they are using the data available on the Web sites to cull minorities, homosexuals and other applicants who are members of protected classes.

    With Facebook alone claiming 66 million active users, more employers are using these popular sites to check out job applicants, observers say.

    A survey of about 350 employers in October 2007 by New York-based, a media company focused on careers, found that 44 percent of employers use social networking sites to examine the profiles of job candidates, and 39 percent have looked up the profile of a current employee.

    Observers say “failure to hire” lawsuits are far smaller in number than other types of employment litigation, such as those involving termination or charging retaliation, but they do expect litigation to emerge from employers’ growing use of social networking sites. Use of these sites could be used as evidence in litigation, even if it is not necessarily the primary motivation behind a lawsuit, they say.

    Few firms, however, have formal policies on this issue, experts say.

    Looking someone up on a Web site is not illegal because the Internet is public property, said Sue Murphy, manager of the National Human Resources Association.

    “But where the liability starts to come into play is when people are making hiring decisions based on that information without coming back and talking to the applicant,” she said. “I think it is going to be tested in the courts.”

    Observers say employers long ago stopped asking job applicants to submit photos with their job applications to avoid being accused of rejecting applicants on the basis of their age, race or other factors. Today, however, it often takes no more than the click of a mouse to locate an image of an applicant.

    If it is found employers have been looking at the sites, “I have a feeling you’re probably going to see lawsuits, and the burden is going to be back on the employer to show the protected category” did not enter into its “decision to hire or not hire,” said Anthony Zaller, an attorney with Van Vleck Turner & Zaller.

Be careful what you look at
    Matthew S. Effland, an attorney with Ogletree, Deakins, Nash, Smoak & Stewart, said he knows of no decision so far “that says using this information is a violation of some employee’s rights, but the law is notoriously slow to catch up to technology. I very much see this becoming an issue in the future.”

    Non-demographic information also can be found on the Web sites. Miriam Wugmeister, an attorney with Morrison & Foerster, said employers should be wary of laws in some states, including New York, that say employers “can’t discriminate against somebody in employment based on activities they engage in, in their private time,” such as smoking.

    Many states’ laws also forbid making job decisions based on applicants’ political activities, Wugmeister said.

    This issue will lead to increased litigation, at least in the short term, “until some parameters are set” as to what is private and public knowledge, she said.

    “We haven’t yet settled on where the boundary is,” she said. As a result, “we may see legislation even more than litigation” on this issue, she said.

    “We have good-sense policies,” said Tim DeMello, founder and chief executive officer of Ziggs Inc., a firm that helps its clients manage their Internet “online brand.”

    DeMello said as an employer, he occasionally looks at applicants’ social networking sites to get some sense of their character. If you go to Facebook and see someone pictured with swastikas and then do not hire them, “do you call that discrimination?” he asked rhetorically.

    Employers should have a policy in place that “details what the purpose of the Internet search is,” and that specifically spells out that the firm does not base its decision on race, color or national origin, said Effland.

    Jennifer M. Bombard, an attorney with Morgan, Brown & Joy, said, “Make sure there’s a legitimate business rationale for rejecting applicants and that your hiring decisions are not motivated by information you found on an applicant’s social networking site. Make sure you can point to a legitimate reason for rejecting” the applicant and document and be prepared to justify that decision, she said.

Unfair inference
    Neal D. Mollen, an attorney with Paul, Hastings, Janofsky & Walker, advised employers to avoid looking at social networking sites altogether.

    “I think it’s unlikely employers are going to learn a good deal of job-related information from a Facebook page they won’t learn in the context of a well-run interview, so the potential benefit of doing this sort of search is outweighed by the potential risk.”

    Tim Best, president of PreScreen America, a background investigation agency, said he tells his clients not to use these sites. If the information an employer learns turns out to be false and relies on it in making a decision, the company is in danger of being sued, he said.

    “It’s at best risky doing that,” said Best, who is chairman of the Privacy and Personnel Information Management Council of ASIS International, a security organization.

    Refraining from checking the Web sites in the prescreening stages protects “the employer from an unfair inference that they relied on demographic data that was not visible on the application,” said Manesh K. Rath, an attorney with Keller & Heckman.

    But once the candidate has been met, “I think that employers are entitled to consider the whole of an applicant,” said Rath, who is a member of the Society for Human Resource Management’s expertise panel.

    Gerald L. Maatman Jr., an attorney with Seyfarth Shaw, said the pros and cons of seeking out this information should be weighed. If there is a subsequent discrimination suit, and an employer honestly acknowledges having looked at a social networking site, “it makes that case more problematic to defend.”

    Filed by Business Insurance, a sister publication of  Workforce Management.

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