Is That Legal? Facebook, Background Checks & Drug Tests

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"Jane" was a mild-mannered office worker by day, but when her co-workers friended her on Facebook, they found she was a party girl. When they shared what they found with management she was denied a raise.

"Bill" was the go-to guy at work who got along well with his colleagues and earned a promotion. But when his co-workers Googled him, they found out he had been convicted of domestic violence, and no one wanted to work with him.

These kinds of revelations — and worse — are all too common in the wake of the development of social media. Figuring out what information is public and, therefore, allowed to be used in hiring and employment decisions is not as simple as it may seem.

Legal vs. available

"It is not necessarily illegal for employers and co-workers to discover this type of information online or through other means, but employers can't use protected information such as age, race, gender, disabilities and sexual orientation when making hiring decisions or employment decisions once the person is working at the company," said Roy L. Cohen, New York-based career coach and author of "The Wall Street Professional's Survival Guide" (FT Press, 2010).

While many of those protections are a result of civil rights laws from the 1960s, today's employers don't need to go very far to find out a lot of things about their employees and job candidates that would have remained unknown before the digital age.

"The law trails the technology here and employers can easily find out things that they couldn't easily find out before, and people often walk into an interview with a potential employer and the person they're interviewing with already knows what they look like from their picture on Facebook, along with their age, race and marital status," said Mark Neuberger, of counsel in the Miami office of Foley & Lardner LLP. "Employers can find out a lot of information that may or may not be relevant to making a good personnel decision."

Here are some of the common methods employers use to research the background of employees and potential employees and a legal reality check as well.

Social media: Legal

As long as employers are not using information they discovered about protected subjects such as a person's age, race or marital status, it is perfectly legal to check out someone's social media pages. In fact, job candidates and employees being considered for promotions should expect employers to take their social media activities into consideration.

"While the law in this area is evolving and continues to evolve, it may be unrealistic to expect meaningful privacy regardless of the privacy settings placed on a social media page," said Lawrence D. Bernfeld, a partner in the New York law firm Graubard Miller. "An executive recruiter, for example, may be a friend of a friend. Also, even someone who is a direct friend has the ability to capture a screen image and forward it to others."

Representing both companies and executives, Bernfeld said that employers may view a person's social media profile to verify information on résumés and to assess communication skills, among other proper uses. If employers discover Web-based information that the law protects against discriminatory use, they must not use such information in the decision-making process.

Employers and prospective employees are making use of social media sites before an in-person meeting. "More and more employees are using social media as a screening method," said Jason Maxwell, president of MassPay, a human resources and payroll services company based in Beverly, Mass.

He said the one thing employers cannot do is create a false identity to lure someone into sharing information.

"But I've seen instances where someone called in sick and posted pictures of themselves at a Red Sox game," and since the pictures were not obtained using a false Facebook page or other deceptive method, they were fair game for the employer to look at and use in making personnel decisions.

Melissa Giovagnoli Wilson, founder and CEO of Networlding, a Chicago-based consulting firm, said employers should establish rules of conduct for social media usage. "It should include information such as what would be cause for dismissal, such as sharing sensitive company information or using profanity."

Contacting previous employers: Legal

"In many cases, you're not going to get more than name, rank and serial number, but it is perfectly legal to check references," Neuberger said. "Most employers are not going to share much more than that based on the advice of their lawyers."

Background checks: Legal, with restrictions

In today's economy, there are a lot of people with bad credit and superior job skills. While background checks, including credit checks, are legal, it is important to get the consent of job candidates and employees.

"The Equal Employment Opportunity Commission and the Fair Credit Reporting Act come into play when you're talking about credit checks, as the EEOC in particular is making the argument that using credit reports as a condition of employment can be discriminatory toward minorities," Neuberger said.

Neuberger said the use of some information discovered during a background check can be tricky.

"Again, the EEOC is concerned about the adverse impact on minorities," Neuberger said. While criminal background is not off limits, he said some states are placing limitations on the use of this information. "Employers generally look at the recentness of the conviction and the age of the individual at the time," he said. "A marijuana conviction 20 years ago is generally viewed differently than being convicted of embezzlement a year ago when you're looking for work in the financial field."

Drug/alcohol testing: Legal, with restrictions

While many companies have policies against drug and alcohol use on the job and require employees to submit to periodic testing, it is important that potential and existing employees be aware of the policies. "There should be procedures in place, employees should be made aware of those procedures and those procedures should be strictly and consistently followed," Neuberger said.

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