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Advice for Employers and Recruiters

Employers Using Facebook for Background Checking: Is It Legal?

Steven Rothberg AvatarSteven Rothberg
September 1, 2006


By George Lenard, the originator of George’s Employment Blawg
There has recently been considerable attention in the media to instances of employers rejecting candidates or firing employees based on information obtained from social networking sites such as MySpace and Facebook. I may later do a review on my own blog of some of this commentary, but today I will discuss a question posed by Steven Rothberg of CollegeRecruiter.com — prefacing my remarks with a lawyerly disclaimer that I am not providing legal advice and have not thoroughly researched these issues, but am merely making some general comments.
Steven asked that I comment on the lawfulness of making adverse employment decisions on this basis. He raised several concerns: that with Facebook, students often have an incorrect understanding that only other students can access their profiles; that there may be false information on those sites, perhaps not even posted by the individuals themselves; and that Facebook’s terms of service explicitly prohibit users from using Facebook for commercial purposes.


Let me start out with the comment that, like it or not, as a general proposition employers are free to make unfair, stupid, arbitrary, and wrongheaded hiring and termination decisions, even based on false information, as long as in doing so they do not violate some specific law.
Discrimination Law
One category of specific laws that could be violated by an adverse employment decision based on information on a social networking site is federal and state discrimination laws. It could be evidence of unlawful discrimination if an employer checks for such Internet information on only certain types of applicants or employees, for example, African-Americans and Hispanics. It may also be evidence of unlawful discrimination if although the employer searches for such information on all applicants or employees, discriminatory bias affects the employer’s evaluation of the information obtained. For example, an employer may view more negatively photos of an African American male, beer in hand, hanging out at a bar with a hip-hop DJ than photos of a white boy, also with beer in hand, hanging out at a rock ‘n roll bar with a bunch of other white boys wearing frat T-shirts. Tell me, was it really the public evidence of drinking that disqualified the individual? How many current employees would be disqualified from employment if never getting publicly intoxicated — or even drinking in public — was a job requirement? These are the kinds of questions the EEOC would ask if discrimination was raised.
Sexual orientation might be another touchy area. These days, it may be frankly disclosed on social networking sites without much thought. Yet, bias remains and might cause some employers to make adverse decisions. In many states and municipalities, sexual orientation discrimination is unlawful, so such decisions will be prohibited.
Invasion of Privacy
A claim that I doubt would fly is invasion of privacy. This requires a “reasonable expectation of privacy.” A student may believe that Facebook access is limited to a few thousand of their schoolmates and their closest friends. Nonetheless, it would be tough to claim that this expectation of limited access, even if reasonable, is an expectation of “privacy.” The Facebook FAQs do support such a belief in limited access, stating:
Can I see the profiles of people on other networks?
Facebook was intentionally designed to limit the availability of your profile to only your friends and other people on your networks. This simple but important security measure promotes local networking and makes sure that your information is seen by people you want to share it with, and not by people you don’t.
On the other hand, if you are using privacy features that you believe restrict access to very few specific people completely within your control, and an employer somehow hacks past such a privacy barrier, you may have a strong privacy claim.
Terms of Service Violation
Now, onward to the terms of service issue raised by Steve. For sake of brevity, I will only address Facebook. MySpace may present somewhat different issues, which I may analyze in a follow-up post. The Facebook terms include the following:

You understand that the Service and the Web site are available for your personal, non-commercial use only. You represent, warrant and agree that no materials of any kind submitted through your account will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. You further agree not to harvest or collect email addresses or other contact information of Members from the Service or the Web site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. Additionally, you agree not to use automated scripts to collect information from the Service or the Web site or for any other purpose. You further agree that you may not use the Service or the Web site in any unlawful manner or in any other manner that could damage, disable, overburden or impair Web site. In addition, you agree not to use the Service or the Web site to:

  • impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity; . . .
  • intimidate or harass another;
  • use or attempt to use another’s account, service or system without authorization from the Company, or create a false identity on the Service or the Web site.

Steven thinks it’s a no-brainer that checking individuals out on Facebook for purposes of employment decisions is a commercial use. This certainly is a possible interpretation, but I believe not the only one. The next sentence focuses on materials submitted through your account, not what you do with information you learn about others. Therefore, “non-commercial use only” could be interpreted as addressing only a prohibition on posting information for commercial gain, such as advertisements. The paragraph goes on to specifically prohibit certain methods of obtaining and using information about others. Though it prohibits automated scraping and spamming, it does not address the issue of searching for specific individuals and using the information to make employment decisions.
It seems a stretch to say an employer is “intimidating or harassing” the user of Facebook by using Facebook information to make an adverse employment decision, but this certainly could be argued.
A more serious issue would arise if the employer misrepresented their affiliation with a college to create an account allowing them to look up certain individuals, or used another’s account to do so. This would appear to be a plain violation of the terms of service.
Consequences of Violation of Terms of Service
Now, let’s assume the employer violated the terms of service. So what? My answer is that this fact may support a tortious interference with business expectancy claim, but probably only if it was a third-party recruiter or investigator who committed a violation. This is because interference by a third party is required. Perhaps, such a claim against the individual who obtained the information improperly, not the company, would satisfy this requirement, but that is still somewhat iffy.
Other elements of this type of client might also be difficult to prove, such as whether the candidate has a reasonable expectancy of employment.
There might also be a federal cause of action under the Federal Computer Fraud And Abuse Act to the extent the recruiter/employer exceeds authorized access (as authorized in the terms of service) in obtaining data from a computer system (the Facebook server).
Other Laws
Another law that could come into play is the Fair Credit Reporting Act. Despite its name, this law has broader application than credit inquiries. It might apply if the Facebook information was obtained by a third party investigator such as a background-checking service. It would not prohibit use of the information, but would require disclosure of the fact that such information was the basis for the decision.
Thinking Practically
Those are a few of my well-educated, but still speculative, legal thoughts. Long ago, one of my mentors taught me to always ask not only what the law requires my client to do, but also what the client should do, taking into account extra-legal factors such as business realities, employee morale, employee and public perceptions, etc. Here, I have some thoughts on what both employers and applicants/employees should do, in the face of this growing trend of employers checking social networking sites.
I would advise applicants/employees to assume future employers will read everything you post. So when you put something about yourself out there, you can be yourself, but avoid obvious negatives like saying you hate to work or posting sleazy or drunken photos. It may help to ask yourself whether you would want your mother to see your site. Sorry to say, but you may not even want to admit homosexuality or extreme political or religious views. On a positive note, use your Internet postings, including blogs as well as social networking sites, affirmatively, to build visibility and credibility as an expert in your field (or hobby). Join more “serious” networking sites like LinkedIn even if you are still a student — and work at building a network there that can help you in future job searches.
I would advise employers to cut applicants and employees some slack. You were once young too and maybe did similar things — if not publicly on the Internet. Ask yourself how relevant the information creating the negative impression is to job performance. If you are going to do Internet searches and use them as a basis for employment decisions, you better document them and do it consistently, without regard to any legally protected classifications, e.g. race, sex, age. I also agree 100% with Steven’s suggestion to use social networking sites and blogs in a positive fashion in your search to find good candidates. Consider the whole person, of whom the Internet persona is not always a fully accurate reflection.

George Lenard photo George Lenard, the originator of George’s Employment Blawg, has over twenty years of experience in all aspects of labor and employment law, including preventive law as well as litigation. His special interests include employment discrimination, sexual harassment, and noncompetition agreements. He is currently a managing partner with Harris, Dowell, Fisher & Harris, L.C., in St. Louis, Missouri, and lives in the suburb of University City with his wife, one daughter and two sons.

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