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It is becoming increasingly common for employers to use social networking sites such as Myspace and Facebook to obtain information about current employees and job applicants in making personnel decisions. Many employers believe it is essential to do so in light of potential liability for negligent hiring and retention. Indeed, recent studies suggest that at least one in five employers use social networking sites to screen job applications and make personnel decisions about current employees.

However, employers who use social networking sites in such a manner need to be aware of the potential legal risks and pitfalls.

Discrimination and retaliation claims

Employers may be subject to potential liability for violations of state and federal anti-discrimination and anti-retaliation laws. In Oregon, for example, there are more than 20 different classifications, called protected categories; they include sex, race, disability, sexual orientation, marital status, and national origin, on which employment decisions may not be based. As such, if employment is denied or an employee is terminated based on one of these protected categories, an employer faces the potential of 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, or is from Guatemala? What if you know this information prior to interviewing the applicant and then decide either to not invite her for an interview or to not hire her? If this applicant later alleges that she was denied employment and files a lawsuit, the employer will have to prove that there were legitimate, non-discriminatory reasons for not hiring the applicant unrelated to her disability, sexual orientation or national origin. Of course, it will be difficult for the employer to prove that it did not consider any of the employees protected categories in making its hiring decision. In other words, although it might not have been illegal for you to have reviewed the Web site, you will have to prove that the information that you learned during your visit did not play any role in your decision. As any employer who has been through a discrimination lawsuit will tell you, it is at times difficult to prove a negative, and you can be sure the disgruntled applicant’s attorney will exploit your Web surfing.

While there is no simple answer as to whether employers should use social networking sites in making employment decisions, one suggestion for employers who choose to do so is to have policies in place that ensure the employer treats all applicants and employees similarly. For example, if the employer searches for employees on Myspace or Facebook prior to considering an employee for a promotion, then the employer should have a policy in place that says so. Though it won’t insulate you from a discrimination claim, it might provide additional protection that could help you win in court.

Invasion of privacy claims

Employers may also be subject to potential liability for invasion of privacy. For example, what if an employer’s random check of an employee’s Facebook profile turns up photos of the employee using marijuana? The employer then terminates the employee. The employee files a lawsuit against the employer alleging that the employer invaded his privacy because he believed that his Facebook profile was private. However, in order for the employee to be successful on an invasion of privacy claim, he would have to demonstrate that 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 that he had a reasonable expectation of privacy when thousands, if not millions, of people had access to his Facebook profile.

But what if the employee had made his Facebook profile 鈥減rivate,鈥� or for his 鈥渇riends鈥� only, and the employer gained access to the profile by becoming 鈥渇riends鈥� with the employee simply to obtain information to make personnel decisions? Or what if the employer used a fake identity to become 鈥渇riends鈥� with the employee in order to gain access to his 鈥減rivate鈥� Facebook profile? Conduct such as this would make the employer susceptible to a liability for invasion of privacy.

Fair credit reporting laws

Fair credit reporting laws, such as the Fair Credit Reporting Act, require an employer to obtain consent from a job applicant or an employee before it engages a background screening firm to conduct a background check. The laws also require that certain notices and disclosures about the background check be made to the job applicant or employee. While FCRA does not oblige employers to comply with its consent, notice and disclosure requirements when using social networking sites without engaging a background screening firm (and does not prohibit employers from doing so), it may require employers to disclose a summary of the information they found on the social networking sites in conjunction with certain workplace misconduct investigations.

Ultimately, before deciding whether to use social networking sites to make personnel decisions, employers should carefully weigh the benefits against the legal risks.

Rich Meneghello is a partner at the Portland office of Fisher & Phillips, LLP, one of the oldest and largest employment law firms in the country dedicated to representing the interests of management.  He can be reached
at [email protected]
or 503-205-8044.