Social Networking Sites and Employment: Watch Out for GINA
There has been quite a buzz of late on the use of information found on social networking sites in employment. Often the concern arises when information that may become the basis of an adverse employment decision is found and relates to a protected characteristic. In other words, the employer didn't mean to stumble upon certain protected information when "google-ing" the applicant but did so. And the next question usually relates to how the employer might demonstrate that this newly found information concerning a protected characteristic did NOT play into the employment decision.
The Genetic Nondiscrimination in Employment Act makes the mere collection of the information illegal. In other words, and ably explained by Megan Erickson in her Social Networking Law Blog,
"With respect to social media issues specifically, GINA makes the mere acquisition of genetic information illegal. Because the Act broadly defines the term “genetic information” (including even medical conditions of family members), checking out an employee’s or applicant’s Facebook profile could easily result in a violation. For example, if an employer found an employee’s status update saying he is raising money for multiple sclerosis in honor of his father who is suffering from it – just getting that information could be a violation."
We are still awaiting the final regulations under GINA. In the mean time, be careful!
