By Eric Parzianello

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With social networking investigations becoming more prevalent in all types of settings, it is important to note that websites such as Facebook, LinkedIn, Twitter and others are essentially public domain. That means that any information added to these sites by users is the property of those websites, not the individuals or companies that provide such updates.

Employers around the state and throughout the country are having internal debates as to how employee or candidate activity on social media sites should be viewed in terms of workplace relevancy. Employment agreements typically govern the use of company property such as computers, cell phones and more. But the online profile that an individual has can also have both positive and negative impact."

There are a number of examples of employers trying to get more access and influence over an employee's online activities - and not just at work. The city of Bozeman, Mont. requires job required job applicants to list "any and all current personal or business websites, web pages or memberships on any Internet-based chat rooms, social clubs or forums," including Facebook, and to provide personal login information for such sites.

Prospective applicants for admission to the Florida Bar may also be required to provide access to their social networking sites.

Such a precedent can be dangerous for employers because it creates a potential discrimination opportunity as part of the hiring process. Such access could provide information regarding the applicant's nationality, religion and marital or family status - all of which are off limits for employers.

If as an employer you learn of medical conditions which would affect hiring decision may also be off limits because disability discrimination.

Certain types of background checks such as the Fair Credit Reporting Act (FCRA) requires that employees provide prior notice of the check to the individual being investigated. FCRA may not yet apply to Facebook and other such social networking websites but a test case is possible.

Other states prohibit denying a job to someone because of off-duty conduct that is not illegal. Aside from opportunity for discrimination, these social networking investigations are legal and prevalent.

Companies and organizations are also paying more attention to what third-party individuals are saying about them in the online world, particularly in social media circles. There are a number of legal options that could be available when a company feels threatened by information shared online. Suits can be brought against parties for defamation in an effort to remove "damaging" posts or online information; however that requires knowledge of the poster's identity.

A website owner or blog operator can be liable for certain statements, though these individuals are generally immune from liability for defamatory statements posted on their websites under the Communications Decency Act (CDA).

However, if the online service provider plays an active role in soliciting information from users that leads to the defamatory act, the operator may not be protected by the safe harbor provisions of the CDA.

With the laws constantly evolving about the management of online data and information, companies should be aware of their rights and how they can deal with any threats to corporate information, such as trade secrets, reputation and employees. Contact me for more information or questions on strategies you should consider.