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With more employers using MySpace and Facebook for background checks, legal experts advice caution

With the employment rate in the United States hitting a 16-year low, employers are faced with a swell of job applicants—and a larger pool of qualified candidates vying for open positions. While employers may enjoy having access to a greater number of resumes, now more than ever they must ensure they’re hiring the most qualified personnel, and that they know exactly who they are hiring. Many business owners are now turning to Internet searches to find out more about their current and potential employees—and finding more personal information than they bargained for just by Googling their names.

“With the proliferation of social networking sites like Facebook and MySpace, employers are becoming more aware of the information obtainable via the Internet about their employees and job applicants. These indiscretions are made permanent in cyberspace for all to see, including prospective employers,” said Ron Brand, a partner with Fisher & Phillips. “However, in looking up information on the Internet, employers need to be aware of potential claims against them, such as federal and state discrimination and invasion of privacy claims.”

Fisher & Phillips attorneys, Ron Brand and Todd Scherwin, remind employers of some of the major concerns in this area of law, including:

1. Is it legal to search social networking sites on the Internet as part of a background check? No law actually prohibits employers from searching social networking sites on the Internet to conduct their own background checks of current employees or job applicants. However, employers need to be aware of potential federal and state discrimination claims and invasion of privacy claims. For example, if an employer finds information on a site like MySpace that identifies an applicant’s disability or medical condition, the employer could be slapped with a discrimination lawsuit if the employer bases its decision not to hire him/her on that information.

2. Can employers terminate an employee or refuse to hire a job applicant based on information found on the Internet? Yes, as long as the employer does not use the information learned from the Internet in a discriminatory manner or otherwise prohibited by law. Employers should keep in mind that much of the information found on the Internet is not accurate or reliable. In addition, they should consider what effect terminating employees based on Internet searches may have on the morale of the rest of their employees.

3. Should employers use background screening firms to conduct background checks on ALL potential job candidates? Brand and Scherwin explain that, in general, it’s a good idea to do at least a criminal background check on all viable job applicants and frequently refer their clients to background screening firms. Such firms will work with employers to comply with federal and state background check laws, and make recommendations as to the types of background checks employers should have done based upon the job’s requirements and duties.

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