With unemployment rates skyrocketing, Ivana Hyre, the HR manager for Binge and Purr Cat Food Company, was facing a swell of well-qualified job applicants for three recently advertised positions.  With her department already short-staffed, Hyre knew that interviewing all of these candidates would take weeks.  To sort through the mountain of resumes, Hyre searched social networking sites such as Facebook, MySpace, Linkedin and Twitter to learn more about the applicants.  Based upon her research, Hyre was able to cull almost half of Binge and Purr’s job seekers for postings she found offensive.  Were Hyre’s actions illegal?

Maybe.  As unemployment rates and the popularity of social networking sites continue to grow, more and more employers are turning to the internet to vet potential hires.  A recent study found that one in five employers uses the internet to conduct background checks of potential hires, and that one in three applicants were dropped from contention after internet screening.  While no law prohibits Hyre from using Facebook, MySpace, Linkedin or Twitter to conduct applicant background checks, Hyre’s research might create liability if Hyre uncovers and acts upon information that Binge and Purr is not legally entitled to ask or know about.  Simply put, Binge and Purr risks legal exposure if, after surfing the net, Hyre uses information to cull applicants who are members of a protected class (e.g. applicant is a minority or a homosexual or disabled or pregnant, etc.).

Given this potential liability, some employers have implemented a “no peeking” policy and prohibit the mining of social networking sites as part of their hiring process.  Other employers, such as the City of Bozeman, Montana, are taking the complete opposite approach, and requested that job candidates provide usernames and passwords for social networking sites so that they can conduct more thorough background checks.

Tilting the Scales in Your Favor:
In a poor economy with fewer employment options, unsuccessful job applicants may view discrimination litigation as a last hope.  While it is always wise to conduct a criminal background check of potential hires, the use of social networking sites to learn more about an applicant may be risky.  If companies choose to use such information as part of their hiring process, policies should be implemented to ensure that HR personnel do not use such information in a discriminatory manner.