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Ask the Expert

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Carl Kanowsky: Facebook, social media and employment law

Posted: August 10, 2012 2:00 a.m.
Updated: August 10, 2012 2:00 a.m.
 

Joan applied for the receptionist job at Imagoner Funeral Home. She was tired of her job at Tilted Hooters, wanted something not as exhausting and a job where people looked at her eyes, not elsewhere.

Joe Curious, manager at Imagoner, got in Joan’s resume while looking for a new receptionist. On paper, she looked good. She’d had only three jobs over the past nine years, had some office work experience, and provided names and numbers for references. So Joe called her in for an interview.

Now, Joan’s a fine-looking woman, which Joe noticed almost immediately. He imagined that the addition of feminine attractiveness to the office would add to both the customer’s experience and satisfaction, even if they were beyond saving.

Joe had attended one of those labor law seminars so he knew the next step to evaluating a candidate was to verify her employment record and call her references. But before he did that he Googled her.

Joe found some interesting stuff. For instance, he found Joan’s Facebook page. This revealed quite a bit about Joan (both literally and figuratively).

For instance, Joe was fascinated to learn that Joan was a high priestess of Amon Ra. There were numerous photos of Joan, including one where she was daintily vomiting violently into a toilet and another of her in full costume for her current job (even though that’s a contradiction in terms for Titled Hooters).

There was also much information about Joan. According to her Facebook page, Joan had other jobs that she had failed to include on her application and admitted that she’d been fired from one for missing too much work.

She discussed freely her lesbian lifestyle and raising two kids as a single mom. She said she was happy with her recent settlement on her car accident lawsuit but still had recurring back problems. Finally, she pledged to her higher-level folks at Amway, a health and beauty company, to engage every new person she met with how great their products were.

After reviewing Joan’s Facebook page, Joe was of two minds. On the one hand after seeing her in her job outfit, he seriously considered changing the dress code at Imagoner. But on the other hand, Joe was concerned because it looked like Joan came with a lot of baggage. High priestess for Amon Ra – what was that all about?

So now, dear reader, what should Joe do? Can he use any of the information as a basis not to hire Joan?

It depends. Her lifestyle outside of work, so long as it did not impact her daily job functions, was irrelevant. Actually the fact that she liked girls, was a single parent or prayed to ancient Egyptian gods was more than irrelevant. Each one of those factors falls into categories protected by state and/or federal law. Joe could not make an employment decision based on any of those.

As for her back problems, unless the job included significant amounts of physical activity, they were similarly off-limits. Joe could ask her if she had any physical disabilities that could prevent her from doing the job. But with a receptionist job it would be tough to use that to reject her application.

How about the Amway issue? If Joe decided to hire her, he could tell her from the beginning that she was not to discuss Amway with anyone while on the job as it had nothing to do with her employer’s business.

But the failure to include some jobs in her application or to disclose that she’d gotten fired was a legitimate basis not to hire her.

So, if you’re going to use the Internet and social media to make human resources decisions, tread carefully. In my next column, I’ll discuss one business that failed to do this.

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com or online through his law firm at www.kanowskylaw.com. Kanowsky’s column represents his own views, and not necessarily those of The Signal. Nothing contained herein shall be or is intended to be construed as providing legal advice.

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