By JOEL BERG, a freelance journalist and college professor
Websites like Facebook, MySpace and LinkedIn offer a rich bounty of information on people applying to work for your company, especially when former employers do little more than confirm the information you already have.
But the information that makes the sites so attractive also makes them potential minefields for employment liability.
Hiring managers run the risk of discovering something--such as a candidate's age, sexual orientation or undisclosed pregnancy--that could lead to a discrimination suit, according to consultants and attorneys who specialize in employment law.
Even a short stint following a job candidate's Twitter feed could reveal enough specifics for a spurned job applicant to consider a claim, said Tyson B. Snow an attorney who specializes in employment litigation for Manning Curtis Bradshaw & Bednar in Salt Lake City.
"The more you check, the more you follow, that's the risk that you run," Snow said.
Other risks also lie in wait, from violations of the Fair Credit Reporting Act to invasions of privacy to laws governing stored communications.
For employers, the challenge lies in balancing the need for information against the risks of what they find. Courts to date have not offered much guidance, said Damon Dunn, a partner at Funkhouser Vegosen Liebman & Dunn in Chicago. For example, it's not clear whether people can expect privacy based solely on a site's terms and conditions.
"I think this is going to be a gray area for some time to come," said Dunn, who concentrates on media and communications law.
Despite the risks, companies appear to be turning more often to social-networking sites, according to surveys by the Society for Human Resource Management. In 2008, 44 percent of human resource professionals used the sites, up from 21 percent in 2006, according to one survey.
In another survey, 30 percent of companies said the recession had them planning to use the sites even more. Of those companies, 53 percent cited the sites' lower cost relative to other screening and recruiting tools.
Indeed, at the annual conference of the Risk and Insurance Management Society Inc. in Boston last April, several insurance carriers were showcasing their prowess in harnessing the tools of the social networking trades.
Cost isn't the only attraction. Companies today have less and less official information to rely on in making hiring decisions, Dunn said. Previous employers reveal little beyond the dates of employment.
"You're basically left relying on the guy's resume," Dunn said. And that could be full of omissions, exaggerations and embellishments.
Beyond the thirst for accurate information is the specter of a lawsuit over negligent hiring, attorneys said. A negligent-hiring claim could arise if a new hire harms co-workers or customers, and plaintiffs find something on Facebook that might have tipped off the employer about the potential threat. In that case, employers might feel compelled to look at social-networking sites.
Companies also have an interest in ensuring their names aren't associated with behavior they believe will reflect poorly on them, said Kyle Ferachi, a partner at McGlinchey Stafford in Baton Rouge, La.
Laws in some states--such as California, Colorado and New York--might shield people from employment decisions based on their off-duty conduct, Ferachi said. Still, employers might be able to show that an embarrassing Facebook photo bore a connection to the person's potential job duties.
Applicants might claim they were passed over for reasons related to their age, race, gender or other characteristics also posted on their Facebook pages, Ferachi said. "The employer just needs to be ready to defend those types of claims."
And the number of claims arising out of social media is likely to grow, said Stacy Paquet, an assistant vice president for Connecticut-based OneBeacon Professional Insurance. "We're definitely on the watch for it."
The first line of defense is to look only at publicly available information, attorneys said. Employers should not try to circumvent privacy controls, say by becoming an applicant's Facebook friend under false pretenses.
"That's obviously much more likely to cause someone to be upset and perhaps file a lawsuit or seek some sort of damages if they don't get a job as a result," said Nancy Delogu, a Washington, D.C.-based attorney who specializes in privacy issues for employment law firm Littler Mendelson. "On the other hand, if it's out there for everyone to see, it's hard to imagine what exactly their complaint might be."
To minimize risk, companies also may want to consider exerting control over who sees the sites.
Front-line managers, who may not be well-versed in discrimination laws, probably should not be looking at the social-networking pages of job applicants, experts said. The task should fall to a company's human resource staff or outside vendors who can deliver reports based solely on information deemed relevant to the job being filled.
"It would have to be very objective things," said Leslie White, president of Croydon Consulting, a risk management and consulting firm in Severna Park, Md. "And they have to be coached in what they can't comment on, going over the different employment laws. You can't comment on gender, religion, ethnicity, all the protected classes, people with disabilities, all that kind of stuff. You can give them very specific guidelines for what to look for."
Human resource professionals may have to make judgment calls based on what they see, but that could become easier as they gain experience with social networking, White said.
"With the right guidelines, you could do it," she said. "It's just another source of information, particularly today since so many people will not give you references."
Whatever the guidelines specify, they should ensure that employers check every applicant's social-networking site and that applicants know it's happening, said Michael Cohen, a partner in the employment labor, benefits and immigration practice group at Duane Morris in Philadelphia.
"You can't just do it haphazardly. You can't do it because the one person is more interesting than someone else," Cohen said. "You open yourself up to discrimination claims based on the process itself."
For example, an interviewer might suspect an applicant is pregnant and decide to check her Facebook page, Cohen said.
As part of the process, companies could ask applicants to "friend" their corporate pages or otherwise grant access to private sites, he said. But that might turn people away and lead to negative publicity.
"It comes back, to me, to the risk-benefit analysis," Cohen said. "What information are you really looking for and does that information really matter?"
For outside vendors, the process may be more complicated, said Les Rosen, president of Employment Screening Resources, a pre-employment screening firm in Novato, Calif.
In hiring a third party, companies could trip over the Fair Credit Reporting Act, a federal law that covers background checks, Rosen said. The law requires companies to ensure "maximum possible accuracy" of the records they turn up. The standard is fairly clear for criminal records and other documents, less so for information found online.
"That's the other problem with the Internet," Rosen said. "What's real? Who's who? Are people telling the truth? Are they embellishing? If I wanted to create a blog and pretend to be you, what would it take? Five minutes and I could usurp your identity."
Employers hoping to sift through the risks likely will have to wait for clearer guidance, attorneys said. So far, the legal precedents are few and there is little to indicate the direction they'll take.
"The laws that we think may come up weren't written with social media and these online resources in mind," said Megan L. Anderson, a shareholder at Gray Plant Mooty Mooty & Bennett in Minneapolis.
As the issue generates attention, however, it could prompt new laws, said Anderson, who concentrates on employment law counseling and litigation.
"To the extent you have legislation that produces more potential claims against employers, they're probably not going to be keen on that," she said. "At the same time, if there's legislation that more clearly lays out the do's and don'ts and makes clear what employers have the right to do, clarity can certainly be helpful."
October 1, 2010
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