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Do Employers Using Facebook for Background Checks Face Legal Risks?

As employers increasingly turn to social networking sites like Facebook to conduct background checks on job applicants and employees, a potential face-off is brewing regarding the legality of this practice, according to reports from Financial Week and The New York Daily News.   Long ago, most employers stopped requiring applicants to submit photographs or inquiring about marital status or age to avoid accusations that they rejected a candidate for discriminatory reasons.  Now, social networking profiles make this once off-limits information readily available, thus reopening the potential for liability.  And demographic data isn't the only concern for employers.  Facebook profiles may also include information about employees' political activities, a factor that employers are prohibited from considering under most states' laws.

A recent study suggests that in fact, many employers are taking advantage of the treasure trove of information that social networking sites provide.  A survey of 350 employers by the Vault 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.

Despite increased employer use of social networking sites, most experts advise employers against the practice in light of the potential risks.  Says Neal D. Mollen, an attorney with Paul, Hastings, Janofsky & Walker, “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.” And for those employers who can't resist peeking at social networking sites, Jennifer M. Bombard, an attorney with Morgan, Brown & Joy, recommends that they document a "legitimate business rationale for rejecting applicants" and make sure that hiring decisions are not motivated by information found on an applicant's social networking site.  Yet even with these prophylactic measures, a discrimination case will be "more problematic to defend" where an employer admits to having looked at a social networking site, says Gerald L. Maatman Jr., an attorney with Seyfarth Shaw.

If employers want to review social networking profiles to get a sense of what a potential employee is like, I say let them (so long as they don't use the information to unlawfully discriminate against protected groups).  But first, require them to disclose the practice to job applicants and employees.  Just as the information that we post on Facebook says something about us, employers' use of Facebook to ferret out personal information about prospective or current employees conveys a lot about them.

Posted by Carolyn Elefant on March 11, 2008 at 03:45 PM | Permalink | Comments (18)

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