Does An Employer Have The Right To Utilize Information Posted On Social Networks When Making Employment Decisions?
Michelle Mancuso
Strayer University Online

Business Policy – BUS 490
Robert M. Brown II
May 29, 2011

Does An Employer Have The Right To Utilize Information Posted On Social Networks When Making Employment Decisions?

Introduction Do employers have the right to use information posted on social networks, such as Facebook, Twitter, and My Space for employment decisions? With the popularity of such websites, employers now have a no-cost way to look up a potential employee’s habits, etc. Employers are not only using them for potential employees, but also for their current staff. Some of what employers are looking at includes status postings, comments, and inappropriate or racy pictures. They are looking to get an idea of what this person does, how they conduct themselves, and whether or not this person is a good fit in their organization. There have been several lawsuits on this topic from employees that have been fired due to posts or pictures made to their facebook wall. This practice has not been deemed against the law, but there is much debate on how this information should or can be used. This paper will discus the pros and cons of using this type of information and also offer some suggestions on how to do it without being sued.
Viewpoints
Jonathon Bick, a Professor of Internet Law, feels an organization can utilize information found on social networking sites as long as they do so lawfully. He states, “to avoid legal difficulties, employers are well advised to employ three particular policies when using information mined from blogs. Three policies that may help ensure the lawful use of blogs include specific actions associated with third parties, existing employees and potential employees. First, attempt to ensure the firm’s personnel who research potential employee’s background comply with the appropriate third-party terms of use agreements while data mining blogs. Second, update the firm’s employee handbook to detail what data mined from blogs may be used, and what data mined from blogs may not be used. Third, update disclosures and background search permission acknowledgements used by potential employees and existing employees to appropriately cover blog review.” (Lawful Mining of Social Networks, 2009). In an article by Keisha-Ann G. Gray, the question on what parameters does an HR department have when it comes to information obtained from social networking sites was addressed. She does acknowledge the fact that it is an inexpensive way to gather information on potential or current employees, however, she advises against it. This information could lead to the potential risk of employer liability. Gray’s reason for this is the information that employers gather would not be permitted to be brought up in an interview. “Therefore, using and in some cases, simply accessing these pages for employment purposes can result in violations of various anti-discrimination statutes, privacy laws, state of “off-duty” conduct statutes, and federal and state Fair Credit Reporting Acts.” (Searching for Candidate Information, 2011). There are several pros and cons about using this information for employment decisions. The pros are as follows: • It’s free • It’s fast • See if the potential employee has the same values and personality that will fit with the organization. • Inside information on the applicant/employee In these tough economic times, organizations are looking for ways to scale costs down, and social networking sites are a perfect way to start. Organizations can pay a pretty penny for an outside company to do background checks. Social networking sites are free of charge and offer more information about a potential employee than any service would. Social networking sites are available at anytime. There is no need to wait for the outside company to send the background check. Immediately find out what college they went to, what employer they are currently working for or have worked for, etc. Hobbies and interests are another bit of instant information; see what kind of clubs they belong to, their views on social issues or politics and what they like to do in their spare time. There are also cons associated with gathering this type of information. • Information gathered can not be used • Violate his/her privacy rights • Information obtained may not be true and accurate

While searching a profile, there is a risk of gathering protected “class” information (race, creed, color, etc.). Such information cannot be used a basis for a hiring decision. Individuals who go through the process of setting different privacy restrictions, do not expect anyone other than those they approve to view their profile. If an employer figures out a way around these restrictions, they could be violating the individual’s privacy. The trueness of things posted on the internet can be a tricky decision. Information obtained should not be taken a face value; anyone can say anything at any time. Photos can be doctored up to put people in questionable situations, etc.

Conclusion There are clearly pros and cons on the issue of whether or not employers can use information obtained from social networking sites, such as facebook, when making employment decisions. Bick made some excellent points about adopting three policies to help organizations avoid legal difficulties, in particular, including details in an employee handbook about an organizations intent on using the data collected from such sites. Along with, giving potential employees disclosure forms they need to sign before a search of this type goes on. Gray’s point about the information gathered and used would not be permitted in an interview, so not going on these sites at all would be in the best interest of organization, is one to consider. However, adopting policies is a better move for employers. More and more companies are utilizing the internet for marketing research so they can get ahead of their competition, it would make sense that they would use the internet for employment decisions. “Official” background checks will still be needed, however, the availability of information obtained from Facebook or My Space will be used until the government decides otherwise.

References

Besnoff, L. (n.d.). Ten Reasons Why You Must Use Social Networking Sites When Hiring and Ten Reasons Why You Should Never Use Social Networking Sites When Hiring. Retrieved May 6, 2011 from http://www.obermayer.com/files/pbi-social_networking-10_reason-_2.pdf
Bick, J (February, 2009). Lawful Mining of Social Networks. Retrieved May 6, 2011 from http://www.bicklaw.com/Publications/LAWFULMININGOFSOCIALNETWORKS.htm Gray, K. (n.d.). Searching for Candidate Information. Retrieved May 6, 2011 from
http://www.hreonline.com/HRE/printstory.jsp?storyID=327202146