I was recently asked by Mike Hanbery of Hanbery Marketing whether there are any laws out there that prohibit an employer from using information that was posted on a social networking site.  The following is a repost of my thoughts on the question that can be found here.

Let me start off with the normal legal language that I have to get out of the way – this information is provided by the Law Office of E.C. Lewis, P.C. for general informational purposes only and not for the purpose of providing legal advice or giving a legal opinion on any specific facts or circumstances.  Now that that is out of the way, here is my take on the question.

As far as I know, there are no laws that specifically deal with the use of information gained by employers through the use of social media sites.  However, this doesn’t mean there aren’t any laws dealing with what can be done with information gained from social media sites.  Social media is just another way of doing what we have always done – learning more about people that we want to hire, do business with, or are friends with.  Twenty years ago, an employer had to research a person to find out whether he wanted to hire her just like he does today.  The difference is there are just more ways to do that now.  Rather than asking just for personal references and learning what you can from former employers, a potential employer can also see what you have done through your own actions on Facebook or Twitter.  And, just like with personal references twenty years ago, these actions may give an employer cause not to hire you.

The laws that govern what can be done with information learned offline also apply to information learned online.  Someone cannot discriminate against you in most cases because of sex, race, national origin, religion, age, or disabilities (I say most because there are jobs where you can, but those are very rare).  In addition, there may be other specific laws protecting you from other types of discrimination (i.e. sexual preference or marital status) depending on the state you are in.  So, for instance, an employer cannot go to Facebook, see your online picture and not hire you because you are a women (unless the job requires that you be a man).  She can also not go to Facebook and not hire you because you list Judaism as your religion (unless the job requires that you be a specific religion).  However, this isn’t any different than it would be without social media.  Twenty years ago, an employer couldn’t interview you and then not offer you the job because at the interview she learned you were a woman and not a man.  The biggest difference now is that an employer can learn a lot about you that would have been difficult 20 years ago.  Twenty years ago, it would have been more difficult, in many cases, to figure out your religion, your sexual preference, and in some cases your age.  Now you can do that with a click of a mouse.  But, either way, whether someone finds out the information online or offline, discrimination, for certain categories, is still illegal.  (Of course proving discrimination is a whole other blog post.)

The area that social media affects the most is when someone finds out information about you that can hurt your job search for which you have no legal recourse.  As far as I know, and I would be very surprised to find a law like this ever being passed, there are no laws that say an employer can’t discriminate because they don’t want an employee who drinks every night (unless somehow an ADA claim was made), they don’t want an employee who has three dogs, or they don’t want an employee who use to have a Mohawk.  The difference with this today verses 20 years ago, is someone would typically find this out after employing you rather than beforehand.  Twenty years ago, you’d already proven yourself to be a great employee after three months of employment so by that point, your employer didn’t care if you had a Mohawk 10 years before you were hired.

Because of this, I tell my friends and family who are searching for a job the same rules that I live by as a business owner (as potential clients are doing the same thing to me as employers do with potential employees), don’t put anything online that can hurt your reputation.  (Also known as the “If you would be embarrassed if your mother saw it, don’t post it on Facebook” rule.)  But even if you aren’t hired because of something on your Facebook site, think about the realities of why.  If someone doesn’t hire you because you have three dogs, do you really want to work for this person anyway?  If a company doesn’t like you because 10 years ago you were in a rock band, do you really need to spend 40+ hours a week there?  However, this doesn’t mean post anything you want.  There is a big difference between not getting a job you would probably not like anyway because you have three dogs and not getting one you would love because you posted 200 topless spring break drunken photos.

Although most of my posts throughout the rest of my blog deal with the employer side of things (as I usually represent businesses), for anyone interested in the interplay of the two, please feel free to browse the rest of my blog.