As I’ve covered in previous articles, there has been a growing trend within businesses to dig into a person’s Social Media based existence as part of the process in evaluating someone for employment. Two recent stories indicate that opinion may be coming down on the side of caution with companies shying away from this practice to avoid possible legal risks from potential fair labor violations.

In an editorial blog post from CIO Magazine website in March, Meridith Levinson sets the tone for this new thinking and notes that not only is this violation of a persons private space by a prospective employer possibly “off-putting”. She also goes on to say:

“By basing professional hiring decisions on candidates’ personal lives and beliefs, employers are effectively legislating people’s behavior. They’re subtly dictating what we can and can’t do, post or say on the Web. Consequently, they’re creating an environment online where people can’t express their true beliefs, state their unvarnished opinions, be themselves, and that runs contrary to the free, communal ethos of the Web. Employers need to stop judging candidates’ personal lives and beliefs and focus on professional criteria.“

In a more direct article. Law.com’s In-House Counsel publication ran article on April 13th this year about one bank’s thinking on using Social Network sites in their hiring practices and their legal reason for opting out of the activity.

Here is an excerpt from that article:

Could these seemingly harmless social networking Web sites create potential liability for a company in a hiring context? Solomon’s short answer: Yes.

The problem lies in the type of information posted there, Solomon explains. Certainly the sites can be a treasure trove of information, including things an employer might not be able to find out anywhere else that could influence the decision of whether to hire a job applicant, she says. For example, someone might use a Web site posting to brag about how he or she took a previous employer’s confidential client list and is now earning a million dollars, she explains, or an applicant might post sexually suggestive photos and comments on his or her site.

In both cases, Solomon says, an employer legally can use the information as the basis for a decision not to hire the applicant. “We live in an age where everyone wants information, and the employers really like it because they can get information that they wouldn’t think about asking in an interview or the candidate would lie about,” she says.

Unfortunately, it’s impossible to filter the type of information that’s visible on an individual’s social networking Web site, she says, which means employers can also get information from those Web sites that they’re not legally entitled to ask about or to know, “and you could be called to task to prove that you did not use the information in the hiring decision.”

Here’s how that can play out in real life, using a mock scenario suggested by Solomon: Jane applies for a teller position at a bank. A company representative punches Jane’s name into a popular social networking Web site and easily brings up her personal page, where Jane and her friends have posted a discussion about her upcoming baby shower. Based on this information, the representative makes the illegal decision not to hire Jane — illegal in that refusing to hire on the basis of pregnancy is prohibited by the Pregnancy Discrimination Act, which is part of Title VII of the Civil Rights Act of 1964.

It is certainly a good topic for discussion. Although, in the long run it’s still really hard to say how this may resolve itself in common business practice.

All in all though I still think the rule applies. Mind your manors when you’re in public and remember that the Internet is public.