4 Comments so far

1. Michael M. O'Hear on October 29, 2008 4:13 pm

   Reading this post makes me wonder if employers are now routinely checking out the MySpace pages of prospective employees (or, for that matter, checking out the pages of current employees on a regular basis). I also wonder if a failure to do so could form the basis of a negligence lawsuit against an employer. For instance, if a retail employee put racist hate speech, including calls for racial violence, on his MySpace page, and then assaulted a black customer, could the employer become liable for not identifying and addressing the risks suggested by the MySpace page?

2. Paul Secunda on October 29, 2008 5:38 pm

   I think it is more like FaceBook these days (and I coincidentally was just telling my employment discrimination class this morning to watch what they post about themselves or what others post about them on FaceBook!).

   As to claims for negligent hiring or retention, these claims are hard to succeed on. The standard is pretty high showing that the employer knew or should have known that the employee had aggressive or otherwise inappropriate tendencies. I think at this point it is far-flung that employers have a duty to search social networking sites.

   On the other hand, and as mentioned above, employers are voluntarily using these sites to conduct background checks of current and prospective employees. And keep in mind that the number of employees fired for blogging keeps going up – see http://www.blogossary.com/define/dooced/ – and there is less protection in the public workplace and little to none in the private workplace for such activities.

3. Andrew Golden on October 29, 2008 10:23 pm

   One of the reasons I deleted my Myspace page last June was because there was little to no control over my privacy. Though I could set my profile as private, Myspace’s privacy settings have the well-publicized reputation of being like swiss cheese. When people would find it amusing to tag pictures of people that weren’t even me doing disgusting things, I couldn’t untag the pictures (which is different than on Facebook). In general, there was just no way for me to control the image that was being portrayed of me on that site.

   By the way, I don’t know if/how many employers are looking on sites like Facebook for information, but I can assure you that defense attorneys are. At the State Public Defender conference I went to at the end of September, there was a remarkable presentation by an attorney from Cincinnati as to how he specifically used Facebook photos and wall posts of the victim and a State’s witness to defend a “date rape” case. It was a chilling reminder to those of us in attendance who use social networking sites like Facebook that you really can’t be too careful about who gets to see what you have.

4. Bruce E. Boyden on October 30, 2008 2:43 pm

   The traditional advice I heard in practice, given to corporate clients, now apparently applies to everyone: “Would you want to read about this on the front page of the Wall Street Journal?”