Social Networking - Off-Limits in Employment Decisions?
July 2012

In the last several weeks, a minor firestorm has developed over private employers' use of social networking sites, such as Facebook, to inform their employment decisions. Though the controversy about social networking sites was not exactly news to employers--many of whom have been monitoring employees’ Facebook, myspace, and similar pages for years--recent reports that some employers were demanding prospective employees to hand over their Facebook passwords has brought the controversy to new heights. As a consequence, new federal and state laws have been introduced and major litigation threatened and initiated, leading many employers to wonder if their own policies and practices are legally compliant.

Social networking sites factor into the employer-employee relationship typically in one of two ways:

  1. The employer visits a job applicant’s publicly available social networking pages to gather information for the hiring decision; 
  2. The employer somehow discovers a current employee has posted a negative or critical comment regarding his or her employment on a social networking site, and the employer takes disciplinary action against the employee (including termination).

Unfortunately for employers, these practices have led to several lawsuits, typically on discrimination grounds. Social networking pages often contain information that the employer is forbidden from considering in making employment decisions. For example, an employer could discover the employee’s religion (with a status update such as “Happy Easter!”), age ("I'm enjoying my 50's more than my 20s!"), marital status (“I love my wife!”), sexual orientation (“I also love my boyfriend!”), disability (“My arthritis is acting up today."), and genetic information (“My dad is finally in remission!”). Therefore, making an employment decision after the employer views these pages created the appearance that the forbidden personal information had affected the decision, a post hac ergo propter hoc conclusion that logic eschews but that employment lawsuits eat up like candy. ...

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