The popularity of Internet blogs and social networking sites such as MySpace, LinkedIn, Facebook and Friendster is causing confusion and concern for some employers.
The Internet sites allow users to publish personal information and pictures for the world to see. Students, for example, often chronicle their drinking, recreational drug use and sexual exploits (with accompanying embarrassing photographs) for their friends to view. Many don’t seem to realize that potential employers also may view their postings—and what those employers see in cyberspace may keep some students from getting a job in the real world.
At the same time, employers are wary of violating federal and state hiring laws when they come across these incriminating web pages. Is there any harm in using information published on the Internet to screen applicants? At a time when it’s easy to search the web for information on just about anyone, what steps should a reasonable employer take to investigate the background of an employee?
The danger of knowing too much
Under federal and state laws, employers may not disproportionately screen out members of groups protected under Title VII, the ADA or the Elliott-Larsen Civil Rights Act. Internet searching often reveals information relating to an applicant’s membership in a protected class. A photo, for example, will tip off an applicant’s race. Employers must be careful not to let decision-makers screen out applicants based on any information pertinent to membership in a protected class.
The best approach is to separate the Internetfrom the decision-making process. Instead of having a hiring manager conduct the search, have someone else check online. They should filter out information relating to protected characteristics (e.g., age, religion or ethnicity) before passing along the search results to decision-makers.
The (limited) right to privacy
Employers must be careful not to conduct overly intrusive investigations. Most workplace-related invasion-of-privacy actions are based on the common law tort of intrusion upon seclusion.
An invasion of privacy based on an intrusion into private affairs requires a showing that (1) there was an intrusion by the defendant (2) into a matter in which the plaintiff has a right of privacy (3) by a means or method that is objectionable to a reasonable person.
Before conducting any, it’s safest to secure a release from the individual being investigated.
Fortunately, most of the information that employers encounter on the Internet is self-published. And, although popular networking sites such as MySpace, Facebook and LinkedIn require users to register before viewing content, anyone can sign up and begin searching for public information on these sites.
No hacking private data
Because networking sites allow members to restrict who can view the information they post, employers shouldn’t look for ways to circumvent access restrictions. Not only does circumventing access restrictions subject employers to invasion of privacy claims, but doing so may be a federal crime. The federal Stored Communications Act (SCA) prohibits unauthorized access to stored communications. The SCA makes it an offense to “intentionally access … without authorization a facility through which an electronic communication service is provided … and thereby obtain … access to a wire or electronic communication while it is in electronic storage in such system.”
Final note: Employers should understand that much of the information posted on the Internet is inaccurate, incomplete and out of context. Employers that chose to screen applicants using Internet searching should proceed with extreme caution.
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