- M. Lee Smith Publishers

<div><strong><font size="1">Excerpted from <a target="_BLANKp" href="http://www.hrhero.com/deemp.shtml?HLw">Delaware Employment Law Letter</a> written by attorneys at the law firm <a target="_blank" href="http://www.employerscounsel.net/bios/deemp.shtml?HLw">Young, Conaway, Stargatt & Taylor</a></font></strong></div>
<p>If you didn't know about it already, there's a new trend among Internet-savvy youth. Known as "social networking sites," websites like Facebook and MySpace are the foundation of that trend. </p>
<p>In short, those websites allow users to set up accounts in online communities where they can create "personal pages," post pictures, and write journal entries about themselves for other Internet users to read. </p>
<p>The premise is that like-minded Web surfers can meet and interact in cyberspace. Millions of college students have set up online accounts, many of which are used to brag about outrageous or explicit behavior.</p>
<p>Posting personal information on the Internet certainly engenders vulnerability to predators and scam artists. But you could argue that Internet shopping also does that to some degree. </p>
<p>Social networking sites present an entirely new predicament, however: They allow employers to gather information about candidates that wasn't available before the MySpace explosion. This new way to access personal information presents risks to candidates and employers alike.</p>
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<p><strong>Who shares space at MySpace?</strong></p>
<p>Different websites have different rules for who can access users' postings. On MySpace, personal pages generally are available to anyone who has registered on the site. Facebook has more limits. For example, college users must have a college e-mail account, identified by a domain name of ".edu."</p>
<p>The sense of privacy that comes with some of those protections often is misplaced. Student job-seekers often assume that only their contemporaries visit their sites. But many recruiters and HR professionals have begun to use the sites as an informal (and free) way to conduct background checks on candidates. </p>
<p>The information on applicants' MySpace and Facebook pages is being used to make hiring decisions. Some employers are said to have fired employees whose MySpace accounts display behavior that's, let's just say, unbecoming to a young professional.</p>
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<p><strong>Risky business for businesses </strong><br />
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<p>But what are the risks of using personal blogs as recruiting tools? For candidates, the danger is in the judgments and decisions made by employers based on what they find on a student's personal page. </p>
<p>For example, a candidate may be devastated to learn he was rejected for his dream job because a member of the interviewing team found pictures of his escapades during last year's spring break on his MySpace page. Or a recent graduate might arrive at her first "real" job wearing her graduation pearls and a new suit and be stunned to find that her new supervisor knows all about her last nasty breakup.</p>
<p>In addition, students have been able to wreak havoc of all kinds under the cloud of anonymity. Some have even created "imposter" sites where they post false or exaggerated information while claiming to be someone else. The student who's being falsely portrayed may not even know the fake site exists, but potential employers may have seen it and assumed he created it.</p>
<p>That type of Internet sabotage has equally negative implications for employers, who may eliminate their best candidates based on faulty information. At the other end of the spectrum, cunning students can bulk up their resumes by posting flattering, but inflated, information. Again, employers run the risk of making hiring decisions based on faulty facts.</p>
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<p><strong>Space between MySpace and the law</strong></p>
<p>There are advocates on both sides of the issue. Some students feel that employers should stay out of their personal sites, which were intended only for the eyes of other students. </p>
<p>Some employers feel that they can prevent bad hiring decisions by being alerted to a candidate's poor judgment. And questions of legality are sure to arise for employers that are considering an Internet search as a recruiting tool. Can you legally make employment decisions based on information you find on the Internet?</p>
<p>Discrimination laws present the biggest risk to employers. Searching the Internet for information about only certain types of candidates -- for example, Hispanics or African Americans -- may be evidence of discriminatory hiring practices. </p>
<p>But if you search the Internet for all candidates, what do you do with the information you gather? Do you reject female candidates with provocative pictures on their pages but hire male candidates whose pages display equally explicit images? </p>
<p>Those decisions could certainly be seen as discriminatory because they treat candidates differently depending on their status inside or outside a protected class.</p>
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<p><strong>Bottom line</strong></p>
<p>In reality, using social networking sites as hiring tools poses relatively low legal risks for employers. What presents a higher risk is inconsistent decisionmaking and the inferences the Equal Employment Opportunity Commission might draw from your decisions. </p>
<p>Whether you're Googling candidates, checking up on applicants via MySpace, or just running an ad in the local newspaper, the rules are the same: Consistently make your hiring decisions based only on information that's job-related. And remember, there's still such a thing as too much information.</p>
<div><font size="1">Copyright 2007 M. Lee Smith Publishers LLC. <a target="_BLANKp" href="http://www.hrhero.com/deemp.shtml">DELAWARE EMPLOYMENT LAW LETTER</a> DELAWARE EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Delaware employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.</font></div>
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