Facebook and Hiring - A German Ban?

The New York Times reports, Germany Plans Limits on Facebook Use in Hiring. According to the NYT, the draft of a new German workplace privacy law would:

[A]llow managers to search for publicly accessible information about prospective employees on the Web and to view their pages on job networking sites, like LinkedIn or Xing. But it would draw the line at purely social networking sites like Facebook.

I don't know much anything about German privacy law, but I guess "privacy" can include content voluntarily disclosed on the Internet?

Are there legitimate reasons for wanting see a potential employee's Facebook page? Sure. Imagine these status updates (in some cases, I didn't use much imagination - they really happened, albeit on Twitter):

1. Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.
2. Called in hungover again today.
3. Dam my employer is retarted.

Of course, these updates contain bad content, but they also reflect poor judgment.

Even in the United States, using social media in the hiring process is not without its risks though. Sure, there's no ban, but employers should be careful that they are not targeting certain applicants based on forbidden characteristics. Even nondiscriminatory social media policies may lead to discrimination claims if the process has a disparate impact.

Finally, the employer may discover information that could be the basis for a discrimination claim. As a consequence, Employers may lose the "ignorance defense." For example, an applicant claims religious discrimination; the employer claims it doesn't even know his religion; the applicant says "It's right there on my Facebook page!"

I don't see a U.S. ban on Facebook-screening anytime soon, but employers should still be careful how they use it.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.