Until June 2009, the City of Bozeman, Montana required job applicants to list login and password information for social networking sites in which the applicants participated.  This, of course, meant that even if the applicant (or the applicant’s contacts on the site) had privacy controls on their accounts, the City could read all about them.  

The City’s legal advisors initially defended the practice, saying that the City was not using the information to make hiring decisions based upon protected-class or associational status,  but only to insure that City employees, from police to life guards, were people of the highest integrity.   The City pointed out that no applicant had never refused to surrender the login information and passwords.  Eventually, however, faced with public backlash after someone informed the local television station about the City’s requirement, the City announced that applicants would no longer be asked for this information.

Without going as far as the City of Bozeman,  employers may fairly glean valuable information about current or prospective workers from social networking sites, depending upon what employees’ or applicants’ privacy settings on those sites allow.  On the other hand, regular “spying” upon the social networking activities of current or prospective employees can easily lead to claims of selective enforcement or discrimination. 

 Take the case of  Ellen Simonetti, who started an online blog called “Queen of the Sky:  Diary of a Dysfunctional Flight Attendant.”  For several months, Simonetti, who was then a Delta flight attendant, gathered quite an on-line following for “Queen of the Sky” postings, but in 2004, Delta fired her for photographs on a Delta plane, and for comments in the blog.  Simonetti promptly renamed her blog “Diary of a Fired Flight Attendant,” and sued Delta for sex discrimination and retaliation.  She’s appeared on daytime television, turned her blog into a published book, and written articles for news media.  Her case has been stayed pending Delta’s bankruptcy.

 Employers may expect to see more litigation in coming years, as they seek to learn all they legitimately can about applicants and employees, and employees push back against those attempts.   Employers should consider adopting policies that clearly describe their expectations concerning employees’ blogging and social networking activities, taking care not to go too far in curtailing employees’ privacy off the job.

 Meanwhile, for employers defending litigation, items employees post in plain public view on blogs or social networks are fair game, and in many kinds of cases, plaintiffs should expect to field legitimate discovery questions about blogging or social networking activities.