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 Palo Alto, California-based 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
Vault.com, a media company focused on careers, found that 44% of employers use social
networking sites to examine the profiles of job candidates, and 39% 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, says Sue Murphy, manager of the Nashua, New Hampshire-based
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 says. "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 that 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," says Anthony Zaller, an attorney with Van Vleck
Turner & Zaller in Los Angeles.
Matthew S. Effland, an attorney with Ogletree, Deakins, Nash,
Smoak & Stewart in Indianapolis, says 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," and "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 in New York, says 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 says.
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 says. "We haven’t yet settled on where the boundary is," she says.
As a result, "we may see legislation even more than litigation" on this issue, she
says.
"We have good-sense policies," says Tim DeMello, founder and
CEO of Boston-based Ziggs Inc., a firm that helps its clients manage their Internet
"online brand."
DeMello says that 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 asks 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, Effland says.
Jennifer M. Bombard, an attorney with Morgan, Brown & Joy
in Boston, says: "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 says.
Neal D. Mollen, an attorney with Paul, Hastings, Janofsky
& Walker in Washington, advises employers to avoid looking at the 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," he says.
Tim Best, president of Arlington, Texas-based PreScreen America
Inc., a background investigation agency, says he tells his clients not to use these
sites. If the information an employer learns turns out to be false, and the employer
relies on that information in making a decision, the company is in danger of being
sued, he says. "It’s at best risky doing that," says Best, who is chairman of the
Privacy and Personnel Information Management Council of the Alexandria, Virginia-based
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," says Manesh K. Rath, an attorney
with Keller & Heckman in Washington.
But once the candidate has been met, "I think that employers
are entitled to consider the whole of an applicant," says Rath, who is a member
of the Alexandria, Virginia-based Society for Human Resource Management’s expertise
panel.
Gerald L. Maatman Jr., an attorney with Seyfarth Shaw in Chicago,
says 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."
Workforce Management Online, April 2008 --
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