Ask the Attorney: Can I Still Do Online Searches About Potential Employees?

Dear Ask the Attorney:

I know that Governor Christie just signed a law which prohibits asking potential employees for their Facebook or Linked In or other social media login information.  As a Morris County business owner, we have always vetted our potential employees.  However, does this mean that I cannot do an online search about these potential employees?  What happens if their Facebook page comes up and it isn’t made private?

B.G.

Our guest blogger is Timothy J. Ford, Esq.,  an associate with the firm of Einhorn Harris Ascher Barbarito & Frost, P.C.   Tim practices in the closely held business group concentrating on working on employment law, general and commercial litigation, and working with owners/managers of assisted living facilities.

Dear B.G: 

Governor Christie recently signed legislation barring employers from requiring or requesting prospective or current employees to provide the employer access to an account or social networking website.  The legislation, which was signed into law on December 7, 2012, limits what an employer can request in order to access social networking profiles.  Violations may result in fines, damages and attorneys’ fees for an employee who successfully sues under this new law.  The law also precludes employers from retaliating against employees who refuse to provide usernames and passwords.

This legislation does not bar employers from searching for social networking profiles.   However, it may lead to other problems.  For example, it may expose an employer to claims for discrimination.  By viewing an employee’s Facebook profile, you may discover that your current or prospective employee is a member of a protected class.  That fact may put an employer on notice of the employee’s membership in a protected class that the employer may not have otherwise known.  That, coupled with an adverse employment action such as a suspension, termination or even less severe discipline, may expose employers to discrimination lawsuits or claims with the New Jersey Division on Civil Rights and/or EEOC.

Information that prospective and current employees include on social networking websites is public.  Even if an employee designates his or her profile to be private, that designation does not have much legal significance.  For many reasons, a simple search of a prospective or current employee is practical.  Frequently, this arises when an employee is disparaging or defaming the employer on the internet.  There is nothing unlawful about searching for information your current or prospective employee puts in the public domain.  However, in this domain, there is no such thing as now you see it, now you don’t.

Employers must be current on the myriad of employment laws.  These laws frequently change.  Employers should consult with an experienced employment lawyer to make sure that its practices conform to the law and do not expose them to liability.

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