Maybe, maybe not. At the least, caution is called for.
Much has been made of people’s willingness to disclose all sorts of personal information about themselves in their social media profiles. It’s nothing new. Who hasn’t been trapped in a conversation with another person who has no qualms about telling you highly personal things you don’t really want to hear?
What is new is the lasting effect of over disclosure in social media profiles. The information that a person reveals online in the here-and-now via a post to a Facebook page can be used against him or her later. If a post or a photo hits the Internet, it’s fair game. A racist rant or a racy photo can be captured, saved and sent to anybody, anywhere.
It can also cause an employer to discriminate against that person, according to research from Carnegie Mellon University.
Under state law, California employers are prohibited from requiring or requesting applicants or employees to disclose information regarding their personal social media accounts.
Employers may not require or ask an applicant to:
- Disclose a username or password for the purpose of accessing the applicant’s personal social media
- Access personal social media in the presence of the employer
- Divulge any personal social media
Employers should also realize the potential problems they can create for themselves by searching for information about an applicant via the person’s social media accounts. Making employment-related decisions on the basis of an applicant belonging to a protected class, for example, pregnancy or religious affiliation, is prohibited by law and can result in expensive discrimination lawsuits.
If an applicant does file a lawsuit, his/her attorney will likely require the employer to hand over computer records in an effort to show that the employer investigated the applicant online by visiting the applicant’s Facebook page.
What should you do to minimize the chances you’ll walk into a bear trap?
- Put policies in place that forbid managers from discriminating against protected classes when making any employment decision
- Train managers to consistently follow those policies
- Educate managers about the perils of snooping online for an applicant’s online or social media profile
If you decide to include online searches as part of your screening process, delegate responsibility for those searches to a manager who is not involved in the actual hiring process.
The ancient “An ounce of prevention is worth a pound of cure” once again can be shown to be a highly useful and pragmatic guideline to make your business affairs more trouble-feel.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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