Social Networking and Background Checks

Posted on August 10, 2009 by Patrick Smith

A post in today's HR Daily Advisor poses the question whether an employer is better or worse off using internet social networking sites as a means of performing background checks on  prospective employees.    On one hand, the internet is an inexpensive and easy way of getting information about a person's background and character.  Given the risks of terminating employees, most companies would rather have such information before a person is hired in the first place.   Moreover, in the event the employee commits some act leading to a lawsuit against the company, the failure to utilize these easy sources of information could subject an employer to a claim of negligent hire.

On the other hand, there may be information about a person on the internet that is either not directly related to the job or is impermissible to consider when making a hiring decision.  An employer might learn information about the employee's age, religion, union affiliation, or other activity that cannot be considered.   Moreover, there is no guarantee the information on the internet is completely accurate. Finally, the employee's right to privacy should be considered.

Whether the internet is used in the first place should be based upon the importance of having the information about the prospective employee.   Once the decision has been made, the employer should be cautious to rely only upon permissible information, and utilize sources where there is not a high expectation of privacy. 

For other posts on the impact of social networking on employers, see the following:

Linked In and Lawsuits-Should You Be Concerned?

Text Harassment?

Employers and Social Networking--Contained in Mid Summer Employment Law Update

Are Social NetWorking Sites Private?

 

 

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Text Harassment?

Posted on July 15, 2009 by Patrick Smith

 The National Law Journal reports today that text messages are becoming a growing liability concern for employers.    Offensive and inappropriate texts are increasingly being used as evidence in sexual harassment cases.  According to the article, the main culprit is male bosses sending scandalous messages to female subordinates asking them on dates or making promises in return for sexual favors.    What used to be a "he said she said" case can now be proved with electronic evidence.

What is an employer to do?   First, it is important to note that a bona fide sexual harassment reporting procedure is still the best defense against these kinds of claims.   Once there is a report of harassment, it is important to conduct a thorough investigation, including obtaining copies of the offending texts in question.  Text messaging also raises e-discovery concerns.   Whether an employer has unfettered access to text messages may depend upon who owns or pays for the mobile phone where the texts were received or sent. 

[Hat Tip: Workplace Prof Blog]

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Are Social Networking Sites Private?

Posted on April 23, 2009 by Patrick Smith

Chances are your employees have sites on Facebook, MySpace, or some other online social networking site.   It is not uncommon for these employees to post statements or photographs on those sites that are derogatory of their boss, their workplace, or their colleagues.  Sometimes people post statements or explicit photographs that embarrass themselves, and by extension, you, as their employer.    Is an employer entitled to terminate an employee for a Facebook posting?  After all, they might say, it was done on my own time, and accessible only to my social networking "friends".

As reported by Anthony Zaller, a recent case in California may support an employer's right to take action based upon information contained in a social networking site.   In Moreno v. Hartford Sentinel, Inc., a Court of Appeals in California dismissed an invasion of privacy lawsuit based upon a newspaper's republication of statements contained in the plaintiff's MySpace site.   The statements were derogatory of the plaintiff's hometown, and she claimed to have received death threats and was forced to move as a result of the paper's republication.

The court reasoned that the plaintiff's "affirmative act [to publish on MySpace] made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material."   The fact that the plaintiff made her postings available only to a limited audience did not change the analysis. 

Although the Moreno case did not involve and employer-employee relationship, the court's reasoning supports the proposition that information on social networking sites is not private, even if the author intends to make the site available to a limited audience.  While an employer should always use caution when relying upon such information in employment decisions, a decision like Moreno provides some confidence that such reliance does not constitute an invasion of the employee's privacy.

 

 

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