How many times have you attempted to contact a job applicant’s former employer for a reference only to be told, “We only confirm dates of employment and positions held”?  Frustrated employers have all but given up trying to include employment history as a part of their due diligence background checks since their tight-lipped commercial counterparts have shied away from frank disclosure about departed employees’ performance and conduct.  So, what’s an employer to do to obtain the real skinny on a potential key addition to its workforce? How is it to really find out if its promising recruit is a malingerer, a petty thief or a malcontent?

More and more employers appear to be turning to social media sites as their source for information about job applicants. Yes, HR representatives are logging onto Facebook, Twitter, LinkedIn, MySpace and a myriad of other sites to access profiles of jobseekers wishing to join their companies.

According to a survey done by Careerbuilder.com, the number of employers using social media sites to screen job applicants numbers in the thousands. Those who search social networking sites to obtain information about job applicants readily admit that they have made hiring decisions based on what they saw on those social networking sites, largely to the candidate’s detriment.

For example, HR representatives have eliminated job applicants from the screening process where their social media sites have revealed inappropriate photographs, alcohol or drug use, unsatisfactory communication skills, prejudice, dishonesty about their qualifications, derogatory comments about their previous employers or coworkers, disclosure of a former employer’s proprietary information and the like.

On the plus side, HR representatives have also reported that a review of the content of social networking sites has confirmed a hiring decision where candidates exhibit creativity, professional communication skills, honesty, tact and positive peer and professional references.

So with all of this information at one’s fingertips, are there any downsides for the employer who is eager to surf the Net? Although this employment area is still evolving, it appears that a number of legal red flags have already popped up of which employers should be aware.  This is despite the fact that the prospective employee is the one largely responsible for publishing the information which appears on the social media site.

Access to social media sites may provide the prospective employer with information about a job applicant’s race, ethnic origin, religion, age, marital status, disability or other protected characteristic that an employer could not question him or her about in the normal interview process. If the employer rejects the candidate, it may be setting itself up for an employment discrimination claim. To defend against such a claim, an employer would be well advised to keep track of the nonprotected information it obtained from the social media site which negatively influenced its decision.

Some employment law professionals are concerned that the use of social media sites might raise claims under the Fair Credit Reporting Act (FCRA). In cases where an employer utilizes an outside agency to conduct a background check on a candidate, it must comply with the FCRA.

Under the FCRA, an employer must obtain the job applicant’s consent before an agency may begin looking into his or her credit history or putting together a consumer report. If the agency investigates social networking sites as part of its reporting process, the employer runs the risk of a claim that the hiring decision was made based upon the applicant’s character without following the FCRA’s requirements. The FCRA itself is silent about checking social networking sites for information. Nonetheless, it may be prudent to notify a job applicant that social networking sites may be screened as part of the company’s background check.

Michigan’s Employee Right to Know Act may also raise legal concerns for employers searching social media sites for information about job applicants. A provision in that Act prohibits an employer from gathering or keeping a record of “an employee’s associations, political activities, publications, or communications of non-employment activities” except as authorized by the employee.  Although the Employee Right to Know Act contemplates that there be an existing employment relationship, it would nonetheless be wise to obtain a job applicant’s express acknowledgment and consent to review Internet profiles as part of the application process.

Constitutional issues involving freedom of speech and association may also be raised in connection with the hiring process used by public employers. So far, courts have been lukewarm to such claims, but they’re still in their nascent stages.

Lastly, employers invite litigation when they attempt to access an applicant’s “by invitation only” media sites without the applicant’s permission. In 2009, an employer in New Jersey allegedly coerced one of its employees to provide company management with the password to access a private chat group maintained by other employees within the company.

Upon gaining unauthorized access to the chat group, the employer discovered information upon which it based a decision to terminate several of the employees. The discharged employees filed suit, claiming that the employer had violated the federal Stored Communications Act (SCA), as well as New Jersey’s Wiretapping and Electronic Surveillance Control Act. A jury, after trial, awarded both compensatory and punitive damages to the discharged employees.

In this era of social networking, it is likely that more and more employers will take advantage of the Internet to find out as much as they can about the people who wish to join their workforce. Some common-sense approaches to checking social media sites will go a long way to ensuring this resource is helpful to the employer.

		Karen Bush-Schneider is a shareholder with White, Schneider, Young & Chiodini, PC, a law firm specializing in employment and benefits law.