Honan, an author at Gizmodo.com, recently wrote an article (‘I Flunked My Social Media Background Check. Will You?”) about a new company that helps employers search applicant’s “internet background” to assist in the hiring process. As Mat rightly points out, much of the concern over this “new technology” is overblown, and as he puts it, “[e]mployers would have to be stupid not to Google job candidates.” Much of the unnecessary concern regarding social media and the law is that lawyers don’t understand the technology. And if lawyers don’t understand it, their client’s use of the technology can only lead to bad things.

I think Guy Kawasaki had a great perspective on this issue when I recently interviewed him. He said he would be worried about a job applicant who did not have a Facebook page: what is wrong with this person? Is he anti-social? Is he not with the times or just simply does not understand simple technology? As Mat points out as well, with some common sense a job applicant can easily manage the results of an online search by being careful about which information he or she provides to the employer. For example, an internet search for the job applicant’s private email address might turn up more personal information than if the applicant has a separate email they only use for work purposes and lists on their c.v.

From the employer’s perspective I don’t think the analysis changes much for searching employees’ background on the Internet:
• If using an outside company, make sure the background check complies with the Federal Fair Credit Reporting Act and any state equivalent
• Do not create fake identities in order to gain access to individual’s social networks
• Rely on common sense and make the determination about hiring or firing based on the same criteria that employers already use and not on any illegal criteria.

Generally, under Federal law, employers may utilize social networking sites to conduct background checks on employees if:
The employer and/or its agents conduct the background check themselves;
The site is readily accessible to the public;
The employer does not need to create a false alias to access the site;
The employer does not have to provide any false information to gain access to the site; and
The employer does not use the information learned from the site in a discriminatory manner or otherwise prohibited by law.

More articles can be read at Anthony’s blog at www.employmentlawreport.com

Author:Anthony J. Zaller, Van Vleck Turner & Zaller LLP