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.

Since I was just talking about this, I thought it relevant to call out a couple of recent stories that made the rounds in January.

First on the Privacy side, there is news that American Express is now evaluating the stores you shop at and changing your credit limit and/or interest rate based on where you shop. Here’s the story about a person who was impacted by this following what he believes was a single trip to Walmart using his AmEx card. This is truly the ugly side of data mining.

Not to alarm you (although you should not only be alarmed but up in arms) but, folks this is just a taste of what’s to come.

Another interesting story that drifted through the aether to my attention courtesy of BoingBoing is directly related to the idea of persistence biting people in the ass.

Many years ago when just about every Windows user was using Napster to download and share music on the Internet, combined with most new PCs shipping with the MP3 Player software, Music Match Jukebox (both programs are now defunct). Many users would configure both Music Match and Napster to share the same folder for audio files. Then at some point they might use the built in “record from microphone” feature of Music Match to make up their songs, audio diaries, rants, you name it. The default file name for these recordings was “Mic in Track”.

A friend of mine who was playing with social disruption and marketing to promote his own music on Napster via a process he called “Culture Jamming” discovered something interesting. Careless (and some not so careless) users had left thousands of Mic in Track audio files on their PCs for anyone to download. Mark talked about this on his site (even putting up a couple of his favorites to download) at the time and it became a rich source of oddness for those with the patience to bother downloading the tracks. This was not a passive activity when you consider that in the mid nineties the majority of the Internet was still connected via 28.8 to 56k speed modems.

Which brings me to the contemporary story that made the rounds last month. Apparently one of the people out there (David Dixon) who learned of the Mic in Track phenomenon took it upon himself to download all of the files he could find. What makes this story relevant to the persistence angle is that David has published dozens of these Mic in Track files on his website.

Here we are now ten years later and for some poor souls that audio track of thier youthful exuberance (or disturbing screed) that was carelessly recorded on their computer for giggles may have committed their act to the ages. You can read a story about David on the LAWeekly site. Or more directly, David’s site holds dozens of his favorite tracks available for download. He has even released a compilation of greatest hits.

Granted there is probably a copyright issue here. Even though these people who recorded these tracks carelessly left them exposed for download, technically they still own the copyright to their creations. Unless David secured their permissions to reproduce their audio recording, I would say he probably doesn’t have any standing to be redistributing these tracks.