As you may or may not know, it is not wise to use social networking sites to post unsavory photos or explosive
rants online due to the fact that they could come back to haunt you in the future, both personally and professionally.
With todays information access via the Internet, many companies are using
the Internet to investigate potential employees and even their own employees.
Recently, Time magazine reported that 70% of U.S. human resources officers said that rejected new
job applicants for inappropriate material they uncovered about the applicant, from social networking sites.
Using todays technology employers can get a much clearer view into the private
lives of workers. Clearly, companies need to use some degree of caution understanding that they cannot use everything
that is discovered without impunity.
Even though lawyers
have repeatedly pointed out and the courts have upheld the fact that, people who post information online have no expectation
of privacy however, this does not mean employers can use all the information legally.
A good rule of thumb when evaluating this information is, if you can't ask it, then just because
you found it on the Internet doesn't mean it should affect your employment decisions.
If you have discovered information about someone's religion, martial status, age, disability or any other protected
status and use it to make your employment decision, you could be facing possible discriminatory action if the fact that any
of that information was used as a reason for not hiring a potential employee.
The same rights and limitations still exist online as those in the off-line world.
Private companies can however decline to hire or dismiss workers for posting
photos or comments, but they can't do so if the postings are related to union activities protected by labor laws.
But such rights don't give companies unlimited rights to fire workers when
they don't like what they have learned about them.
Today, 33 different states have so-called "lifestyle discrimination" statutes that protect employees
against adverse action based on lawful off-duty conduct like smoking, consumption of lawful products or political activity.
Any employers operating in one of these states should use caution and consult counsel before taking
any action based on content discovered on social networking sites.
If the information posted on a social media site is readily available to the general public, then there is no legal
limit on the employer's accessing it.
However,
if the employee has restricted access to it for example, by permitting "only friends" to access a page then, the
employer is at risk of violating the federal "Stored Communications Act" or of being liable for invasion of privacy.
This new scenario really isn't any different from the rules of operation
that companies have used before the digital age, it's just a new way of delivering what has always been around but, with more
information and faster speed.
