Facebook and MySpace are social networking or “friend” sites. These sites facilitate networking through various means, such as: posting photos and creating online profiles; sending private messages to other users; and inviting people to user events. These web sites also have search functions, allowing users to look up each other by name. Recently Facebook expanded its limited availability from only persons with student university email to everyone. Although Facebook has proven to be increasingly friendly to viewers, it still limits access to member profiles by grouping users into networks based on a specific affiliation. MySpace is a similar type of website where users can create profiles, but it contains no limitations on the viewing of profiles.
The More, the Merrier: Employer Access to Facebook/MySpace
Facebook and MySpace have similar privacy settings. Both contain default settings that allow for profiles only to be viewed by registered users of the same network. Both sites provide users with the option to change their settings so that only their friends can see their profiles; however, many users do not take the time to do so because they mistakenly believe that any information posted on Facebook or MySpace is private or should be considered private. If you or a fellow employee is an alumnus under one of these “friend” sites, you too can join the Facebook/MySpace craze.
The Importance of Background Checks
Employees screen prospective employers for several reasons such as: the rise of negligent hiring lawsuits (if an employee’s actions hurt someone, the employer may be liable), child abuse and abductions, terrorism and false or inflated information supplied by job applicants. Additionally, federal and state law background check requirements for certain jobs call for appropriate security clearances.
Governing Law
The Fair Credit Reporting Act (FCRA) sets the national standard for employee screening. However, it only applies to background checks performed by an outside company, called a “consumer reporting agency” under the FCRA; the law does not apply in situations where the employer conducts background checks in-house. Therefore, if the employer conducts a background check itself, it is not subject to the notice and consent provisions of the FCRA.
The Boundaries of “Digital Dirt”
It is worth noting that employer use of Facebook/MySpace to facilitate background checks does not violate the FCRA unless the information was obtained by a third-party investigator. Additionally, there is nothing in Facebook’s user policy, supporting a prohibition against employers who use the site for background checks. The policy’s provision, stating that the site’s services are for “personal, on-commercial” use, can be interpreted as only addressing information for commercial gain, such as advertisements. It would also be difficult to argue that an employer is “intimidating or harassing” a user of Facebook by using posted information to make an adverse employment decision.
The Courts’ Words On Internet “Snooping”
Although the courts have not expressly ruled on the legality of these types of background checks, the courts’ acceptance of evidence based in “friend” sites suggests that they will look favorably upon them. For example, in a recent case, Mackelprang v. Fidelity Nat’l Title, 2007 WL 119149 (D.Nev. 2007), the court held that the Defendants were entitled to discover private MySpace messages relevant to the Plaintiff’s alleged emotional distress and mental condition. Similarly, if a court finds that an employer’s “Internet snooping” on a “friend” site is relevant to the determination of an applicant’s credentials, it is likely that it will also rule that such “snooping” is legal.
Avoiding Legal Complications
Although it may appear that you are in the clear when using Facebook or MySpace to conduct employee background checks, you must proceed with caution when doing so. If you are going to do Internet-networking searches and use them as a basis for employment decisions, you better document and do them consistently, without regard to any legally protected classifications, e.g., race, sex, age, color, national origin, religion, disability. Also, if you use a third party screening company, you are subject to the notice and consent provisions of the FCRA. Because the courts have not ruled in either direction on this issue, use your Internet “snooping” privileges wisely by maintaining an awareness of discriminatory risk and acting in accordance with governing law.