According to some surveys, as much as 40% of today’s employers use social-networking sites like Facebook and MySpace to learn more about applicants’ backgrounds. Some of what those employers are doing could be illegal.

Here are three danger zones:

• Suppose you run across a Facebook photo of your candidate swilling beer in his underwear at a wild party. Would that push you to deny the person a job? In some states it’s illegal to deny a job to someone because of off-duty conduct that’s legal. (And while guzzling beer while wearing nothing but skivvies isn’t exactly model behavior, it’s not illegal.) The exception: If you can show a link between the depicted behavior and the person’s job duties — and how that behavior might interfere with the duties — that’s legal.
• If you use a third party service to conduct certain types of background checks, the federal Fair Credit Reporting Act (FCRA) requires that you give prior notice of the check to the applicant being investigated. And some states, such as California, require notification even if you do the check yourself. Of course, if you were searching Facebook, you wouldn’t want to alert a candidate who might rush online to remove offensive material. No one knows whether the notification rules in the FCRA apply to a Facebook search. And the only likely way we’ll find out is if there’s a test case.
• Let’s say you go on Facebook and stumble upon the candidate’s description of his battle against AIDS. Now, you may not even think about using health as a reason to deny the person a job. But if you do turn the person down and he raises the question of disability discrimination, the ball’s in your court to prove that you didn’t use the information to make the decision.

Tags: AIDS, Facebook, FCRA, MySpace