Tuesday, March 6, 2012

Can an employer ask a job applicant for access to their Facebook page?

This interesting article from MSNBC raises some timely issues related to employer "screening" of job applicants' social media posts. However, internet searches on potential employees can be problematic, raising issues of discrimination and privacy.

According to MSNBC, in Maryland, job seekers applying to the state's Department of Corrections have been asked during interviews to log into their accounts and let an interviewer watch while the potential employee clicks through wall posts, friends, photos and anything else that might be found behind the privacy wall.

Arguably, this makes sense when the potential employment is in law enforcement: if an employee is associating with recreational drug users, for example, then this could impact their suitability for employment in a corrections facility. However, what if the applicant is looking for work in a small business? Increasingly, small business owners are turning to Google searches of public information to get a read on what type of employee they are hiring. For example, Forbes recently ran an article titled "Facebook Can Tell You If A Person Is Worth Hiring." The article, based on a study published in the Journal of Applied Social Psychology, says that publicly available content on Facebook (photos, status updates, and conversations with friends) can be used to measure emotionally stability, conscientiousness, extroversion, intellectual curiosity and agreeableness - all qualities considered essential by employers.

Finding out more about a potential employee sounds like a good idea, but like everything in employment law, there are downsides. Treat casual internet searches just as you would reference checks - with care. Even though the information is available publicly, the results of online searches and Facebook reviews could provide access to information about religious views, national origin, or sexual orientation. You can't ask questions about these things in an interview, and by finding out the answers in an internet search, you could be subjecting yourself to later claims for “disparate impact” or discrimination claims. For example, say you run an internet search on a job applicant and Google turns up a webpage telling you the potential employee is a volunteer deacon at a local church. You now know something - that the applicant is likely to have a particular set of religious beliefs - that you could never ask about in interview. A competing applicant turns out to be a cantor at their local synagogue. You are a Christian, and hire the employee who volunteers at the church. Proving that you didn't discriminate may be a difficult task!

If you choose to search social networks and the internet for information on an applicant, consider asking the employee for permission to do so. This won't protect against discrimination claims, but may help against arguments that you have invaded their privacy.

Mistakes in hiring can become expensive, and by seeking guidance through the hiring process, you stand a good chance of avoiding future claims. The foregoing is intended as information for clients and the Santa Barbara, Ventura and San Luis Obispo business communities, and nothing here is intended as legal advice or to form an attorney-client relationship. If you have questions about hiring and background checks, contact me!

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