On the surface, Facebook seems like the perfect tool for employers—it offers a glimpse into the private lives of prospective and current employees that you wouldn’t ordinarily have.
Johns, Flaherty & Collins attorney Brent Smith, however, advises being careful in how you use social media. Certain actions are illegal even when workers have voluntarily posted information online.
Also, a new Wisconsin law signed in April 2014 prohibits bosses from asking for access to current or prospective workers’ social media accounts. You can’t demand a worker “friend” you on Facebook or request employees’ passwords for social media.
Depending on workers’ individual privacy settings, Facebook and other social media still offer an incredible range of information. You can learn much about their activities, relationships and habits even without asking for that access.
Generally, employers are prohibited from discrimination based on race, sex, religion, national origin, physical disability, and/or age. So if you see photos that show a prospective employee is of a certain religion, it is illegal to use that information in your hiring or disciplinary decision—even though it may be difficult to prove that you took that action because of what you saw on Facebook.
If you learn an individual has been convicted of a crime, you can’t make employment decisions based on that information—unless the crime directly impacts the job. That means you would have legitimate concern about hiring someone convicted of theft to be a teller at your bank.
You must also be careful when learning new information about current employees on social media. For example, photos of an employee drinking a glass of wine on Facebook might make you question his or her judgment but usually should not be used in firing or other disciplinary actions.
“Just because you saw something posted on Facebook,” Smith said, “it doesn’t mean using the information is always legal to use in your hiring and firing decisions.”
Information provided by Brent Smith, Partner, Johns, Flaherty & Collins, SC. For a La Crosse employment lawyer, call him at 608-784-5678.