Should your reference checks on job applicants include looking at their “relationship” Web pages, such as those found on “Facebook” or “MySpace”?

Some experts say yes. It’s your job to find out everything you can about candidates, and checking their Web pages should be routine.

Others counter that such checks may be an invasion of privacy, are likely to turn up information you really don’t want (such as information about disabilities and appearance), and may not even actually be the candidate’s posting.

What to do? Here’s the opinion of George Lenard, writing in the CollegeRecruiter.com blog. Lenard, originator of George’s Employment Blawg, is managing partner of the St. Louis-based law firm Harris, Dowell, Fisher & Harris LC.

There are several issues to be considered, Lenard says, including discrimination, invasion of privacy, and terms of service violations.

Discrimination

Discrimination is one possible charge you could face in response to an adverse employment decision based on website information. This is especially true if you conduct searches only on certain types of applicants and, specifically, those in protected classes. So, for example, searching only for those with certain ethnic or racial backgrounds, or searching only for those of a particular sex or age, would be unwise.

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Of course, even if you consistently search on all candidates, you still could be accused of racial bias if you made a race-based decision after learning a candidate's race from looking at his or her Web page, or if you appear to have made such a decision by, for example, only hiring from a single racial group after viewing these pages.

Sexual orientation may also be readily disclosed on a website, and discrimination on that basis is prohibited in many jurisdictions.

Privacy

Are relationship pages “private areas,” like an applicant’s home, where bosses may not go without permission? Some have said so.

Lenard, however, doesn't think that privacy suits will get very far because of the requirement for a "reasonable expectation" of privacy. After all, how reasonable is that expectation if thousands of people can access your page? However, he notes, there could be a case made if 1) the person believes that the site is private, 2) the site promotes itself as private, and 3) especially if the company used nefarious means (such as using a false identity) to gain access to the site.

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Terms of Service Violations

Lenard sees slim possibilities for cases based on violations of the terms of service agreements that site visitors must agree to. Nevertheless, there is some possibility of problems in this area, particularly if the company enters without proper authorization.

FCRA

There could also be Fair Credit Reporting Act (FCRA) ramifications if the website information is obtained by a third party. FCRA would not prohibit the use of the information, but would require the employer to disclose that the information was the basis for the employment decision.

What should you do on the issue of checking relationship pages? We'll share some thoughts on that in the next Advisor.

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