By Brandon Sipherd

Facebook, the most visited Internet site on the web, may pose problems for both employers and employees.  A recent national study found that employers were impressed by potential employees’ personality, creativity, and communication skills found on the Internet.  But employers have also rejected job applicants for inappropriate photos, content relating to drinking and drugs, and misrepresentation of skills found on Facebook.  By doing this, employers may be violating anti-discrimination laws that have protected employees for decades.

Currently, there is no established case law restricting an employers’ use of Facebook in making its employment decisions.  However, as employers continue to use Facebook to make their decisions, litigation will simultaneously increase with regards to this issue.

Since there is very little legal guidance on the issue of using Facebook or other social medial sites to screen potential employees, many employers have begun to craft company policies in order to protect themselves.  Because social media sites are aimed at friends and family, employers must be careful that the information obtained from the site does not result in discrimination of a protected class—namely race, gender, religion, disability or sexual orientation.  If an employer, for example, screened out applicants, even before interviewing them, based on racial or religious details obtained from social media sites, the employer would be guilty of discrimination.  Using such information to form the basis of an employment decision is against the law.

The same goes for employers who reject an applicant who discloses union organizing, smoking or drinking on a site such as Facebook because all these activities are lawful.

In 2008, a New Jersey employer was sued for the improper use of information obtained from a social media site.  Employees of a local restaurant created a password-protected blog to complain about customers and management.  One manager learned of the blog and persuaded one of the employees to allow him to read the blog.  This resulted in two employees being fired for their written comments posted on the blog.  The two employees then sued the employer and won a $17,000 judgment.

Employers use social media sites like Facebook because there is a need and pressure to hire carefully, especially in an economy where applicants are plenty and jobs are few.  Sites like Facebook also make it easy for employers to discover information that is usually difficult to obtain because of privacy restrictions.

Prudent employers should disclose to potential employees that the applicant process will include reference checking from information found in the public domain, such as Facebook.

Leeds Morelli & Brown, PC is a nationally recognized leader in the area of employment law.  We believe that discrimination based on a person’s race, religion, gender, ethnicity or disability has no place in a democratic society.  Our firm has had considerable success in matters of employment discrimination throughout Long Island and the New York City area.  We take great pride not only in providing quality legal service and representation, but also in being there for clients when they need it most.

For more information, contact Leeds, Morelli and Brown, PC at 1-800-585-4658 for a free consultation.