The Online Sleuths

For more and more companies, social-networking sites are no longer just for social networking.

Imagine, if you will, getting  an e-mail from your company’s HR director indicating that the top candidate for a position you’re seeking to fill led a double life. The young woman with excellent grades, a terrific interview, and top-notch reviews from her internships was the very same person who had a personal page on MySpace.com in which she bragged about shoplifting and recreational drug use and posted photos that looked like outtakes from a Girls Gone Wild video. As social-networking sites like MySpace and Facebook steadily grow in popularity (at last count, MySpace had more than 95 million members; Facebook has more than 54 million active users), their use as a resource for companies increases as well.

According to a 2007 survey by privacy think tank Ponemon Institute, 23 percent of hiring managers look up job candidates on social-networking sites, and 35 percent reported using Google to conduct online background checks. In the same survey, respondents indicated that about one-third of these Internet searches resulted in rejections. Executive job search agency ExecuNet conducted its own study, which concluded that 75 percent of recruiters use Web searches as part of their applicant-screening process. In this same survey, 35 percent of the recruiters reported eliminating job candidates on the basis of revelations discovered online.

And, while a CareerBuilder.com study concluded that just one in 10 employers has used social-networking sites in the selection process, the value of the information discovered is clearly significant: 63 percent of employers surveyed said they declined to hire applicants based on what they found on social-networking sites. The discoveries made about prospective employees went beyond embarrassing photos and included lies about their qualifications, links to criminal behavior, and expressing negative or questionable comments about their previous company or co-workers.

To be fair, information found online won’t always negatively impact a company’s search. The same CareerBuilder.com survey also found that the Web could provide positive information. Hiring managers responding said that in 64 percent of the cases, the background information learned supported the applicant’s professional qualifications, while 40 percent reported that searches revealed the candidate to be well-rounded with wide-ranging interests. Though some companies, including Enterprise Rent-a-Car and Ernst & Young, say they do not use the Internet to check out job applicants, others such as Microsoft acknowledge that research on social-networking sites has become typical. Warren Ashton, group marketing manager for the Washington state software giant, told The New York Times in June, “It’s becoming very much a common tool. For the first time ever, you suddenly have very public information about almost any candidate.”

That very public information can expose more than just personal foibles like sexual escapades, binge drinking, or embarrassing photos. The Times told the story of UCLA student Tien Nguyen, who found little luck getting callback interviews until he Googled himself and found a link to a tongue-in-cheek essay he’d written about how to cheat the system to make employers have a better impression of you; its title: “Lying Your Way to the Top.” After requesting that the essay be taken down, Nguyen experienced an easier time getting interviews and, later, job offers. Other companies have discovered discrepancies between a prospective employee’s academic credentials and online sources. Given the increasing importance of social-networking sites to prospective employers, it’s hardly surprising that 47 percent of college graduate job-seekers in a recent survey had either changed or planned to change the content of their MySpace or Facebook sites. 

The practice of checking out prospective employees using information they’ve posted online has been attacked by some as unethical. Critics point out that many of these sites are supposed to be limited to students, leading many users to assume a certain degree of privacy. In fact, according to a 2006 Carnegie Mellon University study, nearly half of Facebook users surveyed gave incorrect answers when asked who could view their profiles on the site.

Other critics point out that research on social-networking sites can raise troubling questions of discrimination. Age, religion, ethnicity, sexual orientation, and political affiliations—all big “no-no’s” prohibited from discussion during an interview—can certainly surface in an applicant’s online profile. Dawna Milligan, associate director of the Career Center at Johns Hopkins University, told career Web site CollegeGrad.com that “employers that use Facebook or even Google can find information that they could never inquire about in the interview. I’m sure there are lawsuits looming on the horizon.” Still other critics point out that a great deal of online information is no longer accurate, and that reliance on social-networking sites can result in an employer getting the wrong impression of a candidate.

In response, employers and recruiting firms contend that this information has been made public by the candidate, resulting in no reasonable expectation of privacy, therefore giving prospective bosses every right to look at it. Employers say they simply want as much information as possible in order to gain a more complete picture of a candidate. In addition, beyond the red flags that might be raised by specific lifestyle information, hiring executives are quick to point out that the mere fact that an individual posts such information tells prospective employers much about the candidate’s judgment.

Career services professionals at many colleges agree, and advise students that while sites like Facebook and MySpace are excellent networking tools, users should ask themselves if they’d be comfortable with their mother (or boss) viewing their online profile. Marion Hill, director of career services at Dallas Baptist University, told CollegeGrad.com, “If there is the slightest possibility that an employer may get the urge to look at your information on Facebook/MySpace … then make sure what’s on there is what you don’t mind them viewing.”

Law firms, in particular, are using MySpace and Facebook for more than just due diligence on prospective employees. Lawyers are discovering that social-networking sites can be a treasure trove of information for their cases. Armed with Facebook and MySpace printouts, attorneys are using photos, comments, and connections as persuasive evidence in the courtroom.

Dallas family law boutique McCurley, Orsinger, McCurley, Nelson & Downing LLP has discovered that checking out opposing parties and witnesses on MySpace and sites like Match.com can yield vital information. According to partner Scott Downing and law clerk Lindsay Barbee, such research proved particularly useful in a recent case where they were seeking to prove that a husband was having an affair. Online, Downing says, the husband “represented himself as ‘divorced’ and gave a whole long description of the kind of woman he wanted to be with and what his ideal date was.”

In Houston, one employment attorney used MySpace evidence in successfully defending a CEO from sexual harassment and sexual assault allegations. While the plaintiff tried to characterize herself as innocent and modest, her MySpace site painted a different picture, with numerous photos of her dressed provocatively and at bars with friends. Although the plaintiff later changed her privacy settings and even replaced the photos with less racy ones, the attorney had already printed one “very provocative photo,” while learning an important lesson about “getting all the information you can immediately to avoid losing valuable evidence.” 

Alan Marcuis, a partner and employment lawyer with Hunton & Williams in Dallas, describes similar success using information from MySpace and Facebook in defending employment matters. In one instance, Marcuis says, he used the sites “to uncover the details of a former employee’s plans to circumvent her non-compete agreement by establishing a competitive enterprise” under her spouse’s different surname. Once the discovery was made, Marcuis says, “the litigation ended quickly and favorably for our client.”

While the informational free-for-all that is the Internet can provide employers with a wealth of background, companies would be wise to use social-networking sites responsibly. In light of access to information on race, sexuality, or religious affiliation, using Facebook as a hiring tool could subject a company to claims of violating state or federal equal employment opportunity laws. Keep in mind that the information gleaned from such a search may be outdated, out of context, and, in some cases, posted by someone other than the individual himself. Most importantly, remember that you were young once, too—even if your exploits weren’t necessarily made public on the Internet.

John G. Browning is a partner in the Dallas office of Gordon & Rees, where he handles a wide variety of litigation representing businesses. He can be contacted at [email protected]

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