It should go without saying that employers need to use caution when they use social-networking sites to gather information on job candidates. After all, you don't want to inadvertently learn something you can't legally use to make a hiring decision - like the candidate's race, or that she's pregnant, or even that he uses a wheelchair. If you learn such information and then subsequently decide not to hire the candidate, it becomes that much harder to prove you made the decision based on non-discriminatory factors.
Rather than leaving the matter up to employers' good judgment, however, lawmakers in Germany have proposed legislation that will make it illegal for employers to vet prospective employees by checking out their Facebook or MySpace profiles, or any other social-networking site not specifically designed to connect potential employees with potential employers. Spiegel Online International reports:
[T]he new law will reportedly prevent potential bosses from checking out a candidate's Facebook page, [but] it will allow them to look at sites that are expressly intended to help people sell themselves to future employers, such as the business-oriented social networking site LinkedIn.
Interestingly, information about candidates that is generally available online will be "fair game," the story says, as long as it is not too old or something that is out of the candidates' control. That means the employer could run a Google search on the candidates without running afoul of the proposed law. However, as experts noted in The New York Times not long ago, just because a search on someone's name yields results, it doesn't mean those results pertain to that particular person. What if there is more than one John Smith in a given geographic area?
Or, as a Tech Crunch writer pointed out recently, what's to prevent employers from looking at the Facebook status updates that are included in search results? Who's to determine when information is too old? Or how is a candidate supposed to go about proving that a particular post was out of his or her control? And how will the employer prove that it didn't check out the social-networking sites before making a hiring decision?
Hopefully, all these questions will be answered to some extent before the proposal reaches its final form and actually becomes law. It will be interesting to see how it is enforced, if this particular section is enacted.