In the age of Facebook, Twitter and the vast array of other social networking sites, employers routinely vet job applicants (and even current employees) by seeking out their online profiles.
So what happens if you find unflattering or unprofessional posts or photos on those profiles? Can you decide not to hire an applicant because what you find leads you to believe they have poor judgment, won’t be a “good fit,” or will represent your brand poorly to the public?
Because Washington is an at-will employment state, the answer is probably “yes,” depending on the circumstances.
In some states, however, the answer may be “no,” unless you discover the applicant has engaged in illegal conduct.
California, Colorado, New York and North Dakota all have so called “off-duty conduct statutes,” prohibiting employers from taking adverse action against applicants or employees based on lawful off-duty conduct – like drinking at a bar or making comments on social media.
These statutes grew from efforts to prevent employers from discriminating against employees who used tobacco products. Indeed, several states have enacted “tobacco only” or “lawful products” statutes that prohibit employers from taking adverse action against employees for using tobacco or other lawful products under certain circumstances.
Off-duty conduct statutes take this protection a step further.
The California Labor Code, for instance, provides that no employee shall be discharged or otherwise discriminated against for lawful conduct occurring during nonworking hours away from the employer's premises. See Cal. Lab. Code §§ 96(k), 98.6. Colorado, New York and North Dakota have statutes imposing similar restrictions. See Colo. Rev. Stat. § 24-34-402.5; N.Y. Lab. Code § 201-d; N.D. Cent. Code § 14-02/4-03. These statutes do contain various exceptions, including, in some cases, for certain provisions in collective bargaining agreements, bona fide occupational requirements, activities that constitute conflicts of interest, and restrictions that are rationally and reasonably related to the employee’s particular responsibilities. In some cases, however, meeting these exceptions may prove difficult.
As concerns over employment privacy increase there may be additional state (or even federal) efforts to restrict employer use of online information.
In 2009, for instance, Representative Steve Cohen (D-TN) introduced a bill to amend the Fair Credit Reporting Act to prohibit employer use of certain consumer reports in the hiring process (HR 3149). Indeed, just this week, the German government undertook consideration of a law that would prohibit employers from examining certain social networking sites of applicants and employees altogether.
Although Washington employers don’t currently face such onerous restrictions, remember that you must still be careful when looking into an applicant’s or employee’s online background. Aside from the fact that such information can be unreliable and difficult to verify, you may also discover a lurking disability or non-obvious protected characteristic of the employee about which you would not otherwise be aware.
In addition, the National Labor Relations Act (which applies to union and non-union employers alike) prohibits employer surveillance of protected concerted activity.
Employers should also be careful in how they gain access to employee information. Pre-texting or other surreptitious access, for instance, can potentially land you in hot water under a number of laws including the Computer Fraud and Abuse Act, the Stored Communications Act, and the Electronic Communications Privacy Act.
Finally, you may have obligations under the Fair Credit Reporting Act to notify applicants that you will be investigating their online background and to provide applicants with appropriate notice should you decide to take adverse action based on what you find.
These are just a handful of pitfalls that an employer can encounter in the digital era. For additional information on these issues you should consult with your in-house or outside counsel.
Brian is an associate with Sebris Busto James, where he counsels and represents employers in labor and employment matters. Brian has a particular emphasis in employment privacy and the impact of new and emerging technologies in the workplace, including employee use of social media. Brian is a member of the ABA’s Committee on Technology in the Practice and the Workplace, and can be followed on Twitter @brianflock or on Facebook via his fan page. Brian can be reached at (425) 450-3380 or by email at firstname.lastname@example.org. © Sebris Busto James, 2010 (reprinted with permission on wac6.com).