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"If an employer has reduced his staff by 25 percent and finally is comfortable about hiring a candidate, they want to be darned sure the new hire is the right fit for the position," Begley says. "An easy way to get insight is to take a look at what is out there in the social networking universe. Nothing limits an employer from doing that."
The popularity of such practices has spawned Web sites like Yasni.com that make it easy to turn up personal and professional information and photos posted on social networks and blogs. But with opportunities for more prehiring information comes added risk, especially from the Fair Credit Reporting Act. The FCRA requires notice and consent prior to pulling a report from a consumer reporting agency, and notification if the candidate is rejected based on the report. Issues arise over what is and isn't a credit report for employment purposes, according to Andrew Serwin, a partner at Foley & Lardner, and several kinds of background checks can generate FCRA claims.
In a recent New Jersey case, restaurant employees created a password-protected MySpace page where they complained about their jobs [see 3rd Circuit, October 2009, p. 64]. Two employees were fired for statements they made on the page after an employee gave the password to a manager who asked for it. A federal court allowed the fired employees' invasion of privacy suit to go to trial to resolve the question of whether management coerced the employee who provided the password. In June, a jury found that the restaurant violated the federal Stored Communications Act and the New Jersey Wiretapping and Electronic Surveillance Control Act, and that management acted maliciously. Because it was one of the first cases to address the issue of employer Web snooping, Pietrylo v. Hillstone Restaurant Group set off alarm bells.
"Until there is more case law, this is a high risk area," says Gordon.
Social networks, of course, are not the only place where employers can monitor their employees' thoughts and behavior.
The line of reasoning in Quon v. Arch Wireless has led some employers to change their electronic use policies.