Can an Employer Consider a Prospective Employee’s Social Media Content In Making a Hiring Decision?

Q.     I just had a prospective employee come in.  I was really impressed, but in the wake of the Oklahoma Fraternity scandal, and how stupid people can be by putting EVERYTHING on the internet, I thought it would be a good idea to do some further investigation.  I am a luddite, so I had my nephew, who does not work for my company, do a search on this so-called “internet” (aka, the “World Wide Web”), and he found a series of pictures which shows this prospective employee out partying with his friends – he appeared drunk and in a hot tub with several women who were wearing only wet t-shirts.  It also appeared from the pictures that some of the attendees were smoking marijuana in the background.  He then commented on the pictures by stating “Still flying high – but I want my t-shirts back! #bestnightofmylife.”  Although not as bad as the Oklahoma Fraternity scandal, I am afraid this guy is a walking sexual harassment suit, not to mention the fact that I would be very concerned about his ability to carry himself in a professional manner.   That said, I am not sure I can make a decision based on what my nephew found on the internet.

A.     As the growth of social media continues to expand, it is becoming more and more commonplace for employers to check a prospective employee’s social media profile.  In 2012, California passed a law that forbids employers from asking  prospective employees their social media passwords, but there is nothing that prevents an employer from searching what is publicly on the internet.   That doesn’t mean an employer should not have some concerns.  While an employee may have a hard time making a claim for an invasion of privacy when their information is publicly available, the fact that an employer viewed a prospective employee’s Facebook, Instagram or Twitter posts may give the prospective employee a better claim for discrimination.  This makes sense if the prospective employee lists on his or her Facebook page (or other social media outlet) his or her religious affiliation, sexual orientation, marital status, political view points, etc., and then claims the employer based its decision not hire upon those protected classes.

Additionally, an employer must be careful not to have a third party do the background check without complying with the Fair Credit Reporting Act disclosure and notice requirements.  In the above scenario, the “nephew” did the search.  Other interesting questions may also arise.  Although California Labor Code section 96(k) does not create the ability for an employee to file a lawsuit, it does provide an administrative remedy for preexisting rights under the Labor Code.  Specifically, 96(k) states that the Labor Commissioner shall have jurisdiction over “claims for loss of wages as the result of demotion, suspension or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”  Finally, Labor Code section 432.8 prohibits inquires about convictions for certain marijuana offenses that are over two years from the date of conviction.  What if this party was three years ago and resulted in a misdemeanor conviction?  How does an employer un-ring the bell?

In the end, using a search engine may be a way to get a better understanding of your prospective employees, but there is some risk. #alwaysliability

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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