Employers Checking Social Networking Sites

By: Brad Chenowith, Josh Michael,Daniel Sapunar & Lindsay Stuchinsky

A survey in 2007 found that half of UK employees would be outraged if their employers looked up information about them on social networking sites, and 56% thought it would be unethical

More than half (53 percent) of employers research potential job candidates on social networks such as Facebook, says CareerBuilder.co.uk.Research by the job

search Website revealed that a further 12 percent said they were planning to start using social network sites to check out potential employees.

CareerBuilder said that two in five employers said they had found content on a social network that dissuaded them from hiring a candidate.Over a third said a social

networking profile proved they had lied about their qualifications on their CV, while 13 percent claimed a potential employee had made discriminatory comments on their Facebook page and nine percent said provocative or inappropriate photographs had been posted on the account.

In fact, 7.5 million college students use Facebook.

Many employers admit they've even learned how to access profiles students think are "private"

The Trend

•Companies can sort through applicants to find the few that they believe will create the fewest problems.

•Facebook users may decide to “clean-up” their pages so they are more employer-friendly due to more and more companies viewing their page.

Positive to Businesses

Negative Aspects for Businesses

Negative Aspects for Applicants

Negative Aspects for Facebook

• They could potentially eliminate highly qualified candidates.

• They face possible court cases due to the use of social networking sites as reason not to hire an applicant.

• Not being hired/being fired for content on Facebook, some of which may be on friends pages.

• Expected to be caught up on technology, yet being looked down upon for using this technology for personal reasons.

• They may be held responsible for this new found controversy.

• Could potentially lose its followers.

Violation of Freedom of Speech?

•There is a need to determine if employers using Facebook for hiring decisions is a violation or not.

•There has been one court case regarding a girl who did not receive a job due to one MySpace picture.

•Federal district court ruled that it did not breach her 1st Amendment rights because a picture is not considered “protected speech.”

Liability to the Company

•If a company asks you to refrain from posting anything with company or employee names in it, but you post something anyway, then you are violating company policy and are at fault.

•In some cases, businesses can be held liable for things employees post about the company, which partly explains company’s cautiousness toward Facebook.

•Hiring based on the way a company perceives you or your friends on Facebook is a complete violation of the first amendment.

•The owner of Facebook is going to have to battle this issue in court, or he will eventually loose his followers.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

1st Amendment

Are Employers Using Facebook for Discriminatory Reasons?• Years ago, most employers stopped requiring

applicants to submit certain information such as:

photographs marital status age

• This avoided possible accusations that they rejected a candidate for discriminatory reasons. 

• Today, 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

DISCRIMINATION

Are Facebook Background Checks Legal?

•Many employers are taking advantage of the amount of information that social networking sites provide

•Facebook profiles include information about employees' political and religious activities▫employers are prohibited from considering

under most states' laws•There is no notice in applications that

social networking profiles will be viewed.

• Jennifer M. Bombard recommends that companies 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.

What The Attorneys Say:“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.”-Neal D. Mollen

How Can Employers Checking Facebook Be Challenged in Court?

• Discrimination• Freedom of Speech• Invasion on Privacy• Guilty by Association

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)

-Gerald L. Maatman Jr., an attorney with Seyfarth Shaw

Without precedent, it is hard to say for sure whether cases would be successful, but there are possible court cases under the following:

•Businesses have no right to discriminate against our friends. Just as they cannot refuse to hire someone based on their relationships.

•Francin v. Mosby, Inc. (2008): states that supervisors should only focus on employees performances and not their home life.

•Lucke v. Multnomah County (2008): Supervisors should focus only on how their employees perform and not on their home life or friends.

1. DISCRIMINATIONIn Court…

•According to the New York Times, Lafe Solomon, the general counsel said, “Whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”

•Basically, we are allowed to say what we want and post what we want on Facebook, including pictures.

2.Freedom of Speech

3. Invasion of Privacy

•The definition of “invasion of privacy” is “the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. It encompasses workplace monitoring, Internet Privacy, data collection, and other means of disseminating private information.

4. Guilty by Association•According to USlegal definitions: guilty by

association is someone being guilty without any proof only because those whom they know are guilty.

•With this in mind, it does not make sense for supervisor to deny someone a job simply because of the actions of their friends.

Based on the definitions of theses crimes, we believe that is it worth it to challenge employers that are determining

employment through Facebook in court.

• http://oregonbusinessreport.com/2009/08/45-employers-use-facebook-twitter-to-screen-job-candidates/

• http://www.cbsnews.com/stories/2006/06/20/eveningnews/main1734920.shtml

• http://legalblogwatch.typepad.com/legal_blog_watch/2008/03/do-employers-us.html

• http://www.macworld.com/article/145719/2010/01/facebook_jobs.html

• http://legalblogwatch.typepad.com/legal_blog_watch/2008/03/do-employers-us.html

• http://www.thclinic.org/content/services/legal.php• http://www.usconstitution.net/const.html#Am1• http://en.wikipedia.org/wiki/Online_vetting• http://definitions.uslegal.com/i/invasion-of-privacy/• http://virtualmarketingofficer.com/2010/11/do-your-law-firm

-employees-have-a-right-to-free-speech-on-facebook-legal-case-filed-by-nlrb/

• http://judicialmisconduct.blogspot.com/2009/03/freedom-of-speech-case.html

• http://search.yahoo.com/r/_ylt=A0oG7h94vmFNmU0BaTxXNyoA;_ylu=X3oDMTE1a2ZxN3NqBHNlYwNzcgRwb3MDMgRjb2xvA2FjMgR2dGlkA01TWTAwOF8xNjY-/SIG=12bkfvbcp/EXP=1298280184/**http%3a//definitions.uslegal.com/g/guilty-by-association/

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