Mar 04, 2011
Do you check Facebook or other social networking sites for information about job applicants? If so, you're not alone: A survey by Jobvite Inc. shows that more than 80% of companies do. But there are legal risks to using social networking sites as a screening tool.
As a recent column in Fortune points out, using Facebook and other social networking sites in hiring can lead to discrimination claims. When you view someone's page and posts, you may well see information that you are not allowed to consider in hiring, such as race, religious or political beliefs, and so on. (The column uses the great example of discovering that an applicant belongs to a number of groups for expectant mothers.) If you decide not to hire that person, you may be accused of basing your decision on this information that you would otherwise not be privy to or allowed to use in the hiring process.
The article also discusses the possibility of disparate impact discrimination claims, based on the fact that Latinos and African Americans are disproportionately represented on LinkedIn, the job networking site most commonly consulted by hiring managers.
Employees and job seekers who use social networks are routinely told to mind those privacy settings. In other words, if you want to keep your online persona personal, use privacy controls to make sure that your information can be seen only by those you have approved. But even this may not be enough to ward off prying potential employer eyes: In an incident publicized a few weeks ago by the ACLU of Maryland, Robert Collins was asked, during a recertification interview for his job at the Maryland Department of Corrections, to provide his Facebook user name and password. Then Collins got to sit and wait while his interviewer read his page and all of the posts by his friends and family.
Regular readers of this blog know of my ongoing fascination with the breakdown of public and private lives enacted by social networking sites -- and particularly, the large numbers of people to whom the public nature of their posts becomes clear only after it's too late. (Examples from the recent news are people whose posts become evidence in criminal proceedings, including a woman who had a Facebook fight with a friend over a $20 loan for baby formula and diapers, which escalated to online threats and homicide, and a suspected bank robber who jumped to the top of the most wanted list when he found some time while on the lam to log on to MySpace and post, "on tha run for robbin a bank.")
But if someone takes the time and trouble to try to limit their social networking to their actual social network -- their family and friends -- there could be a better privacy argument to be made. Depending on the site's privacy controls and the care the user takes to limit access to personal information, there may well be a stronger expectation of privacy in what's posted on these pages. We'll have to see where courts come down on this issue.