New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

Just as important, employers should be mindful that they may learn things about applicants that cannot legally be used to make hiring decisions, even though the information is publicly available. For example, employers all know that it is illegal to make a hiring decision based on an individual’s race, religion, disability, sexual orientation, or other protected characteristic. In fact, in New York, an employer cannot ask an applicant for those types of information. But it is nearly impossible to visit a job applicant’s MySpace or Facebook page without also accessing those types of information. For example, in addition to the general information contained in an individual’s Facebook profile, which may list gender, marital status, religion, and age, an individual’s profile picture will reveal his/her ethnicity and, if not already disclosed in the profile, the individual’s sex. Most of this information will be revealed even if the individual takes advantage of the sites’ privacy features that limit who can become a “friend” or a member of the individual’s network.

In addition, most Facebook users post pictures of their family and friends on their pages, which may reveal a lot about their personal lives. This too can present an employer with information it may not want to have. For example, an employer might find pictures of a job applicant’s baby shower on her Facebook page. Of course, an employer cannot legally refuse to hire the applicant because she is pregnant, but once it has the information it has increased the risk of having to defend such a claim.

In addition to containing information about an applicant’s membership in classifications protected under the equal employment opportunity laws, an individual’s union activity or affiliation may also be readily discoverable. In addition to general “union organizing” pages, many unions have developed Facebook pages. In using social media screening, an employer might discover that a particular job applicant is a “fan” of a union that has been attempting to organize the company at which the applicant has applied. It would be unlawful for an employer to discriminate against an applicant based on such union activity or affiliation.

And employers cannot assume that their online searches will remain secret. Today, electronic discovery is sought in most discrimination lawsuits and may include records of online searches of social networking sites

So what can employers do to minimize the risk that this valuable tool will lead to liability? At a minimum, employers who use online searches should develop a fair and uniform policy and procedure for online searches. Employers should determine if social networking checks will be conducted, for what job categories or positions, the scope of such searches, and the types of information to be obtained and documented. The policy should also address the time during the hiring process when such screening will occur, preferably later in the hiring process to limit the number of applicants affected. Most importantly, the individual conducting the screening should not be a decisionmaker, should report only relevant information, and should not record or report any information which an employer could not lawfully solicit on an employment application. If using a third-party to conduct such screening, compliance with federal and state fair credit reporting obligations is required.

As with all steps in the hiring process, the information obtained and relied upon should be documented and retained with other hiring records. By using a policy to define the criteria or information to be sought in the screening, employers can more easily manage the documentation task by retaining only information which meets the designated search criteria. Finally, once it has been determined what job categories or positions will be subject to screening, employers should be consistent in conducting searches only when filling those positions.
 

While the FTC has indicated that it is not necessarily going to take enforcement action against an employer for the statements of a single “rogue” employee, employers should nonetheless take proactive steps to help protect against potential liability by ensuring that their technology usage policies cover all electronic communications, employee blogging and use of social networking sites (e.g., Facebook, Twitter, MySpace, LinkedIn). The policy should also clearly inform employees whether they are permitted to discuss the employer’s products and/or services online. There are advantages and disadvantages to authorizing such discussions. Permitting employees to do so may well serve the interests of the employer by providing increased exposure through positive word-of-mouth. However, it could also yield negative statements about the employer or its products which are seemingly authorized by the policy. Where an employer elects to allow employees to discuss its products/services, the policy should state that employees who engage in such discussions are required to clearly and conspicuously disclose their relationship with the employer. The policy should also require employees to include a disclaimer within any online discussion of the employer’s products/services, such as, “any opinion stated is that of the employee, and is not authorized by the employer.”