Social networking websites—such as Facebook, Friendster, and MySpace—allow users to post information about themselves, to stay in touch with friends and meet new ones. A typical member profile might include photos; education; career interests; lists of family, friends, favorite music, television shows, and films; weekend activities; political leanings; personal musings; and more.
The sites also hold a goldmine of information for the curious employer, particularly as a tool to screen potential hires. As a general rule, the practice isn’t illegal and could turn up red flags about an applicant—or maybe even something that’s flattering to a potential hire—that you’ll find useful in making hiring decisions.
But there are some legal issues that could arise from using social networking sites. For example, you could learn that an applicant is gay or belongs to a certain religion, or perhaps you see a photograph so you now know an applicant’s race. Typically, employers don’t have access to information about sexual orientation or religion, and it is illegal to ask about such matters and, of course, to make employment decisions based on them. You may discern an applicant’s race during an in-person interview, but you wouldn’t ordinarily have that information during the resume-screening stage. So if, for example, it turns out that few or no African-American candidates who submit resumes are being invited in for interviews, you could have a bias lawsuit on your hands if there’s evidence you’ve been browsing on MySpace.
Employers should also be aware that under California law it’s illegal to reject or discriminate against an applicant because he or she participates in lawful conduct during nonworking hours away from your premises, engages in political activities, or has political affiliations. If you come across this kind of information on an applicant’s Facebook profile and then reject the person even though he or she is otherwise qualified, it could be your word against the candidate’s as to whether the information affected your hiring decision.
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