• 14
  • January
    2011

In our previous post, we discussed employers' rapidly expanding use of information contained on social media and Internet sites when making employment decisions. Many companies have already established policies governing the use of Internet information to screen applicants. Although the Internet is a great source of information for screening applicants, there are also legal concerns, including an applicant's expectation of privacy and compliance with state and federal antidiscrimination laws.

Whether employees and applicants have an expectation of privacy in the content they post on social media sites is an unsettled area of the law. Courts can be divided into two viewpoints: one that believes that privacy is waived and the other that believes that social media postings are protected communications under the Stored Communications Act.

Sites like Facebook and MySpace typically have a public profile page that provides some basic information on a job applicant, which can include a picture, marital status, age, religion and other information that is not usually part of a typical profile derived from a resume or job application. Under many anti-discrimination laws, employers are generally prohibited from inquiring about an applicant's race, political affiliation, marital status, sexual orientation or disability status. However, social media sites will often give an employer access to this information.

Title VII of the 1964 Civil Rights Act and other federal laws prohibit consideration of many of these protected characteristics, including race, religion, age, gender, pregnancy status, national origin, or disability status. So employers should avoid basing employment decisions based on this information irrespective of how the information was obtained.

Many employers have elected to establish policies that govern the way information contained on the Internet can be used in making employment decisions. Some policies include a general disclosure clause that informs applicants that such information may be reviewed as part of a background search. A disclosure of this type may override an applicant's expectation of privacy in publicly available information. However, these disclosures may also increase an applicant's awareness that information on protected characteristics may have been gathered in the hiring process.

If you have questions about hiring policies and employment law, an experienced employment law attorney can advise you of your legal rights and options.

Source: Westlaw Journal Computer and Internet, "Employers Accessing Digital Dirt: Some Things to Consider," Nichelle Levy and Julian Wright, 12/22/2010 (retrieved from Westlaw News and Insight)