Employer’s Use of Social Networking Sites in Employment Decisions: “Damned if you do; Damned if you don’t.”
The emergence and growing popularity of social networking sites pose new challenges for Wisconsin’s private employers. Sites such as Facebook and MySpace provide Wisconsin employers with information about prospective and current employees never before available and access to this information has never been easier or more cost-effective. With the click of a mouse, employers can learn information about a prospective or current employee ranging from race, national origin, sex, and age to personal interests, political views, sexual preferences and religious beliefs. Now that this information is readily available, the two primary issues Wisconsin private employers face is whether there is now an affirmative duty to search these sites for the protection of other employees and third parties and, once searched, the permissible use of the information.
The Facts on Social Networking
Nearly half of all Americans ages twelve and over are now members of at least one social network—double the proportion of just two years ago. While social network use is highest among the young, it is in no way limited to them—two-thirds of 25- to 34-year-olds and half of those aged 35 to 44 also now have personal profile pages. Moreover, 30% of social media users access a social media site “several times a day,” up from 18% in 2009.
The most popular of these networks are Facebook, Twitter, LinkedIn, and MySpace. Facebook targets students and adults by allowing members to create a profile that focuses primarily on personal matters including family, friends and hobbies. Facebook has more than 500 million active users, 50% of which log on any given day. The average user has 130 friends, and people spend over 700 billion minutes per month on the site. Twitter asks users what they are doing, and the user answers with a brief message. Users can also post links to articles, pictures, videos, and other information about themselves or others. Although the number of users on Twitter is significantly less than Facebook, new users are signing up at the rate of 300,000 per day.
LinkedIn operates the world’s largest professional network on the Internet with more than 90 million members in over 200 countries and territories. It basically targets professionals and allows members to create a profile that describes their professional background and facilitates a connection between other professionals. The site officially launched on May 5, 2003, and by the end of the first month in operation, LinkedIn had a total of 4,500 members in the network; it took 494 days to reach the first million members, and now, on average, a new member joins every second of every day, or approximately one million every 12 days.
MySpace was launched in 2004, and has more than 100 million users worldwide, half of which are in the U.S. In a single day, over 1.6 million users spend 18 million minutes playing over 19,000 games and applications on MySpace. MySpace permits users to connect with one another in many ways by creating a profile; by extending invitations to others to communicate on the site and by meeting new people with common interests like music, film, travel, or politics; and permits members to interact with other people through applications.
Generally, a person is required to create some type of profile when registering for a social networking site. This is accomplished by filling out a series of online forms eliciting a broad range of personal data. Depending on the site, users are commonly asked to provide their names, home addresses, e-mail addresses, age, sex, location, and date of birth. Later, these profiles can be supplemented with other personal information including interests, favorite groups or organizations, work history, education, relationship status, photos, blogs, web journals, favorite links, and the like. Although certain privacy settings can be created by the user to restrict access to certain groups or users, certain information will always remain public.
With these sites gaining popularity every day, and with the amount of information that can be obtained from the sites with little effort, it is no surprise employers have found ways to utilize the sites to aid in employment decisions. A study conducted by CareerBuilder.com revealed that 45% of U.S. employers surveyed use the internet to screen applicants (29% using Facebook; 26% using LinkedIn; and 21% using MySpace); 35% of those had rejected an applicant based upon their search results; and 18% of those employers found content on the sites that encouraged them to hire a particular applicant. Information obtained on these sites about current or prospective employees includes photos involving drinking or drugs (remember Michael Phelps??); provocative or inappropriate photos; poor communication skills; bad-mouthing of a previous employer or sharing confidential information about a previous employer; or lying about qualifications.
Quite simply, the more prospective or current employees communicate information about themselves through one or all of these sites, the more information a prospective or current employer has at its fingertips to assist in making employment decisions. With access to this information, how much of it should employers use to make employment decisions and what information, if used by employers, can result in liability? For instance, if a Wisconsin employer chooses not to utilize the available information on these sites, does it open itself up to a claim of negligent hiring if something happens later that may have been avoided if information on the sites had been reviewed (remember the shooting spree by the college professor)? On the other hand, if that Wisconsin employer does utilize the sites and obtains relevant information, does access to this information open the employer up to claims including invasion of privacy, discrimination, or defamation?
As discussed above, there is much information to be learned about a prospective employee on social networking sites and access to the information is fairly effortless and cost-effective for an employer. For these reasons, there can be no question that an employer benefits from the use of social networking sites. However, do those reasons also support an argument that a Wisconsin employer has a duty to perform a search for the protection of other employees and for its own protection? Without doubt, the doctrine of respondeat superior would provide a plaintiff with an indirect action against an employer for the act of an employee when that act was within the scope of the employee's authority. But does Wisconsin recognize other claims upon which a finding of liability could arise for the failure to utilize social networking sites to make sound hiring decisions?
Although no Wisconsin case has addressed whether an employer can be held liable for negligent hiring for its lack of obtaining relevant information through social networking sites, the tort of negligent hiring has been recognized in Wisconsin. Specifically, in Miller v. Wal-Mart Stores, Inc., the Wisconsin Supreme Court acknowledged that Wisconsin recognizes the tort of negligent hiring, training, and supervision. To state a claim, a plaintiff must show that the employer has a duty of care, that the employer breached that duty, that the act or omission of the employee was a cause-in-fact of the plaintiff’s injury, and that the act or omission of the employer was a cause-in-fact of the wrongful act of the employee.
Courts in Wisconsin recognize that everyone in Wisconsin has a duty of care to the whole world to refrain from any act that will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest are unknown at the time of the act. In defending against a claim of negligent hiring, an employer may argue that it was unforeseeable that its act in hiring a particular employee would cause the plaintiff harm. However, the ease with which an employer can access online information about a particular job applicant and the low cost of doing so will certainly detract from this argument. Because it is foreseeable that the failure to obtain relevant information about a potential hire could foreseeably cause harm to someone, it will not be difficult for the plaintiff to prove the first required element of the claim. Once that showing is made, if the plaintiff can show that the employer breached its duty by failing to utilize such an inexpensive and readily-available source of information and that the plaintiff was injured as a result, that plaintiff may be successful in proving a negligent hiring claim.
Invasion of Privacy
On the other end of the spectrum, what happens if a Wisconsin employer does utilize social networking sites to discover information about a potential job applicant or a current employee? Does the employer subject itself to liability from the applicant for invading that person’s right to privacy? Wisconsin has expressly recognized a statutory right through Wis. Stat. § 995.50, which could provide a cause of action against employers for invasion of privacy—an action not barred by the Workers’ Compensation Act exclusivity provision. Section 995.50 was enacted by the legislature after the Wisconsin Supreme Court held that there was no common law right of privacy in Wisconsin. Particularly applicable to potential claims by employees against employers, the statute defines invasion of privacy to mean an unreasonable intrusion upon the privacy of another person of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass. By using the word “place” in this definition, it seems the Wisconsin Legislature intended to limit the scope of actionable intrusions under the statute.
For example, the word “place” has been interpreted to not include medical records maintained by a county jail. In Hillman v. Columbia County, the plaintiff, who was in inmate in the jail, alleged that the county had unlawfully intruded upon his privacy by disclosing to jail employees and inmates that he had tested positive for HIV. The court held that reading a file of medical records could be considered an intrusion under the Restatement of Torts definition, but not under the language utilized by the Wisconsin Legislature in § 995.50(2)(a). Utilizing a dictionary definition of the term “place,” the court concluded that the plain meaning of the word is geographical and therefore does not encompass a file of medical records.
However, some years later, in Fischer v. Mt. Olive Lutheran Church, Inc., the federal district court for the Western District of Wisconsin, interpreting the language of § 995.50(2)(a), concluded that “place” is not limited to an immediate physical environment but also encompasses private belongings, as long as the place where belongings are intruded upon is one that a reasonable person would consider private. Notwithstanding this rationale, the court held that intentional access by the employer was insufficient to show a violation of a right to privacy when the defendant accessed plaintiff’s e-mail while it was stored on a remote, web-based server owned by Microsoft. Expanding on this rationale, the primary issue becomes whether a potential job applicant or employee can have an expectation of privacy in information that has been posted and made public to some fellow users of a social networking site.
Although Wisconsin has never addressed this issue, other courts have, generally finding that there is no reasonable expectation of privacy with regard to internet postings or e-mails that have reached their intended recipients. Very recently, a New York court, faced with the issue of whether a plaintiff in a personal injury lawsuit had an expectation of privacy in—and could therefore protect from discovery—information she posted on an on-line social networking page, came to a similar conclusion. In Romano v. Steelcase, Inc., the court held that neither Facebook nor MySpace guarantees complete privacy. Thus, when the plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding privacy settings to the contrary. The court noted that the sharing of information was the very nature and purpose of social networking sites—were that not the case, they would cease to exist. The court concluded that since the plaintiff knew that her information could become publicly available, she could not claim that she had a reasonable expectation of privacy in the information and was required to provide the information in discovery. Whether this rationale would apply across the board to all content included on a social networking site, and whether this rationale would be applied by Wisconsin courts to information that is somehow protected from a large number of people or is password-protected, remains to be seen.
If a plaintiff can survive the hurdle that he or she has a reasonable expectation of privacy in the information accessed, the issue is whether a privilege applies to the employer’s conduct, thereby shielding the employer from liability. Specifically, Wis. Stat. § 995.50(3) recognizes absolute and qualified privileges as defenses to claims of invasion of privacy, and if the employer can establish that its conduct was protected by a privilege, the plaintiff must then establish that the employer abused the privilege. Moreover, if the employer can prove that the plaintiff consented to the employer’s ability to access the information, that consent creates an absolute privilege as long as the information accessed did not exceed the scope of the consent.
Other than facing a potential claim of invasion of privacy, the use of information obtained about a current or prospective employee from a social networking site can also result in potential liability to the employer based upon discrimination. The social networking sites noted above, including Facebook and MySpace, require the creation of a profile which can provide access to certain information including age, race, national origin, sex, disability, and religion. If employers use this information in employment decisions, a potential claim could arise on the basis that the employer has violated the anti-discrimination policies created by the Wisconsin Legislature.
More specifically, the Wisconsin Fair Employment Act (WFEA), prohibits employment discrimination on the basis of age, religion, color, disability, marital status, sex, national origin, ancestry, and arrest and conviction record, and prohibits discrimination with regard to hiring, promotion, compensation, terms or conditions of employment, and discharge.
As noted above, many of the social networking sites being used by employers to screen applicants or to make employment decisions regarding whether to hire prospective employees or fire current employees contain fields prompting users to list certain protected classifications, including sex, age, and race, and encourage the users to share other legally protected classifications including religion, national origin, or other group associations. In addition, pictures posted on Facebook or MySpace could include information concerning other classifications including pregnancy and disability. If employers are using this type of information in their employment decisions, a case could be made by a prospective or current employee that the use of the information was discriminatory under the WFEA (and a host of other applicable federal employment statutes).
The methods of proving discriminatory conduct in Wisconsin are largely based on concepts developed in federal case law under Title VII, and include two basic theories—disparate treatment and disparate impact. The first of the theories, disparate treatment, which is the most commonly used of the two and would be the theory most likely utilized in claims involving information obtained from social networking sites, is used in cases in which the plaintiff is alleging that an employer took an adverse action against him or her because of his or her age, race, sex, or other prohibited basis of discrimination. In other words, the central issue is the employer’s motivation in taking the action—i.e., whether the action was motivated by discrimination or by other legitimate, nondiscriminatory reasons.
If a plaintiff is successful in presenting a prima facie case of discrimination based upon the employer’s use of sensitive information obtained on social networking sites concerning certain protected classifications—creating a presumption of discrimination—the employer is given the opportunity to rebut that presumption by articulating legitimate, nondiscriminatory reasons for the actions that it took. Then the burden shifts back to the plaintiff to establish by a preponderance of the evidence that the employer’s articulated reasons are simply a pretext for discrimination.
Although a defamation claim arising while an employee is employed is barred by the exclusivity provision of the Wisconsin Worker’s Compensation Act, a defamation claim arising out of an employer’s publication of the fact of or reasons for the firing of an employee could be the basis for a viable claim. For example, an employer’s false statement that an employee has been fired or that an employee committed misconduct can be interpreted as defamatory. The elements of a defamation claim in Wisconsin are: (1) the statement must be false; (2) the statement must be communicated by speech, conduct, or in writing to a person other than the person defamed; and (3) the communication must be unprivileged and must tend to harm one's reputation so as to lower him or her in the estimation of the community or to deter third-persons from associating with him or her. Wisconsin’s applicable jury instruction notes that the action of defamation is based upon the principle that a person’s reputation and good name are of great value, and that once that reputation and good name have been damaged by statements of another person, restoration is virtually impossible.
On the issue of how many people the statement must be communicated to, the applicable jury instruction notes that it is not necessary that the defamatory statement be communicated to a large number of persons. It is enough if it is communicated to a single person other than the one defamed. The jury instruction also notes that it is not necessary that the statement be made or published with the intention to defame, because the intention of the speaker is not material to the claim.
Even if it is determined that a statement made by a current or prospective employer could be considered defamatory, it may not be actionable if it falls within a class of conduct which the law terms “privileged." A defamatory statement may be conditionally privileged if it is "made on a subject matter in which the person making the statement and the person to whom it is made have a legitimate common interest."If it is determined that the defamatory statement was conditionally privileged, the burden shifts to the employee to show that the conditional privilege was abused.
Conclusion and Suggested Best Practices
Faced with potential liability for either not accessing available information through a negligent hiring claim or for accessing information through an invasion of privacy, discrimination, or defamation claim, most Wisconsin employers have taken a proactive approach in these matters by adopting internet and e-mail user policies in their employee handbooks. Any employers who have not done so already would be wise to do so now. Any policy should be well documented in either an employee manual or separate policy statement to avoid any claim of ignorance of the policy and should require the written signature of the employee or prospective applicant to demonstrate consent to the policy. At a minimum, in regard to current employees, the policy should state that the employer maintains the right to monitor employee use of all company-owned and issued data storage devices on social media and networking sites, even if the social networking or social media use is during non-work time or is password-protected, and that an employee should have no right to a reasonable expectation of privacy with respect to any information, even if the information is sent through the employee’s personal e-mail account with company property. If a policy is adopted concerning internet screening of potential applicants, the policy should be narrowly tailored to limit access only to information that is publicly available through social networking sites; should require careful documentation of the sites searched and the information obtained; and should mandate that the persons conducting the internet searches be separated from those charged with the ultimate hiring decision.
 MediaPost Online Media Daily, Study: Americans’ Social Net Use On The Rise, But Services Not Entirely Wasted On The Young, (MediaPost News April 9, 2010).
 219 Wis. 2d 250, 267, 580 N.W.2d 233 (1998).
 Id. at 267-268.
 See Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 275 N.W.2d 660 (1979); Rockweit v. Senecal, 197 Wis. 2d 409, 541 N.W.2d 742 (1995).
 See Marino v. Arandell Corp., 1 F. Supp. 2d 947 (E.D. Wis. 1998).
 See Yoeckel v. Samonig, 272 Wis. 430, 434, 75 N.W.2d 925 (1956).
 Wis. Stat. § 995.50(2)(a) (2009-10).
 164 Wis. 2d 376, 474 N.W.2d 913 (Ct. App. 1991).
 Id. at 392.
 207 F. Supp. 2d 914 (W.D. Wis. 2002).
 Id. at 928.
 See U.S. v. Lifshitz, 369 F.3d 173 (2d Cir. 2004).
 2010 NY Slip Op. 32645, 907 N.Y.S.2d 650 (Sept. 21, 2010).
 Wis. Stat. § 995.50(3) expressly recognizes both absolute privileges (statements made during judicial, quasi-judicial, and investigative proceedings) and qualified privileges (statements made to protect the communicator’s interest, the interest of the recipient, or a third person or to a person who may act in the public interest). Consent and waiver are also considered absolute privileges, as long as the information published does not exceed the scope of the consent or waiver.
 Wis. Stat. §§ 111.31 - 111.397 (2009-10).
 Wis. Stat. § 111.322 (2009-10).
 See, e.g., Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).
 The second theory, disparate impact, is used to challenge employment policies or practices that, when applied and are nondiscriminatory on their face, have a disproportionate impact on individuals of certain legally protected classes. Under this theory, the motivation of the employer is irrelevant; what is relevant is whether the challenged policy has a discriminatory effect. See id.
 Becker v. Automatic Garage Door Co., 156 Wis. 2d 409, 418, 456 N.W.2d. 888 (Ct. App. 1990).
 Zinda v. Louisiana Pacific Corp., 149 Wis. 2d 913, 440 N.W.2d 548 (1989).
 Schaul v. Kordell, 2009 WI App 135, 321 Wis. 2d 105, 773 N.W.2d 454; Wis. JI-CIVIL § 2501.
 Wis. JI-CIVIL § 2501.
 Wildes v. Prime Mfg. Corp., 160 Wis. 2d 443, 449-450, 465 N.W.2d 835 (Ct. App. 1991) (quoting Zinda, 149 Wis. 2d at 922).
 See Zinda, 149 Wis. 2d at 926.