International Law

Are Facebook "Background Checks" by Prospective Employers Legal?

By Garry J. Wise, Wise Law Office, Toronto

Carole Elefant at Legal Blog Watch discusses the legality of the increasing use by prospective employers of Facebook "background checks" in their employee recruitment:

...[F]or those employers who can't resist peeking at social networking sites, Jennifer M. Bombard, an attorney with Morgan, Brown & Joy, recommends that they document a "legitimate business rationale for rejecting applicants" and make sure that hiring decisions are not motivated by information found on an applicant's social networking site. Yet even with these prophylactic measures, a discrimination case will be "more problematic to defend" where an employer admits to having looked at a social networking site, says Gerald L. Maatman Jr., an attorney with Seyfarth Shaw.

...If employers want to review social networking profiles to get a sense of what a potential employee is like, I say let them (so long as they don't use the information to unlawfully discriminate against protected groups). But first, require them to disclose the practice to job applicants and employees. Just as the information that we post on Facebook says something about us, employers' use of Facebook to ferret out personal information about prospective or current employees conveys a lot about them.

According to the article, "44% of employers use social networking sites to examine the profiles of job candidates, and 39% have looked up the profile of a current employee."

As far as I am aware, there is absolutely no evidence whatsoever of any correlation between the salaciousness of an individual's Facebook content and that individual's prospective employment performance.

This recruitment practice is simply snoopy and gossipy and prurient and irrelevent.

It sheds no light at all on job-worthiness or skill sets. It leaves employers highly vulnerable to accusations and inferences of discriminatory hiring practices. It is unlikely to yield any measurable improvement in workplace productivity.

Beyond that, this form of online corporate stalking probably favours only those candidates who are smart (or sneaky) enough to cover their tracks by deleting all the "interesting" stuff, while also being reckless enough that they don't bother to adjust their Facebook privacy levels to restrict uninvited access while they are job-hunting, and generally.

Is that really who you want to be hiring?

- Garry J. Wise, Toronto

Full post as published by Wise Law Blog on March 11, 2008 (boomark / email).