The popularity of social-networking sites, such as Facebook and LinkedIn, has exploded in the last several years. Facebook boasts more than 600 million users. Facebook has become a treasure trove of information for anyone looking to discover the “truth” about an individual’s private life. Divorce attorneys report that Facebook is the single best online source for information to be used in divorce or custody proceeding. Law –enforcement agencies across the country turn to Facebook to locate suspects and gather evidence. And insurance investigator have put their telephoto lenses away-today they can find out all about a beneficiary’s activities from anywhere with an Internet connection.
So it only makes sense that employers, too, would want to put Facebook to work. More and more employers report that they’ve eliminated a candidate from consideration after viewing something negative in the candidate’s Facebook profile. But this practice does have legal risks. The good news, though, is that those risks can be avoided by following the steps discussed below.
What Not to Do
As an initial matter, employers should be aware of what they should not do when surfing the Web. First, do not ask anyone-including current employees and job applicants-for his Facebook password or other log-in credentials. The town of Bozeman, Montana instituted a policy that required applicants to turn over their passwords. Bloggers, tweeters, and Facebookers across the globe united in online protests and Bozeman quickly cancelled its policy. In February 2011, the Maryland Department of Corrections suspended a similar policy when the ACLU campaigned against it on its blog and on YouTube.
Second, do not try to gain access to a candidate’s profile indirectly. For example, don’t ask another employee, who is Facebook friends with the candidate, to show you the candidate’s profile. Last year, the New Jersey Supreme Court upheld a jury verdict against an employer for similar conduct, finding that such tactics constituted a breach of the employee’s privacy.
Third, do not send a Facebook friend request to the candidate without disclosing the real reason for the request. Similarly, do not instruct or permit anyone else to do the same on your behalf. If a candidate’s privacy settings prevent you from accessing his profile, the better idea is to tell the candidate in advance that you want him to accept your friend request but only for 24 or 48 hours. And be clear about what it is that you’ll be looking for once access is granted, as discussed in the following sections.
Stay tuned for Parts 2 and 3, when we’ll discuss best practices for using Facebook and other social-networking sites in the job-screening and hiring process.