Font Size:

You won't find Amegy Bank of Texas CEO Paul B. Murphy Jr. uploading new profile pictures onto Facebook or linking Twitter feeds to a MySpace page. Murphy, who heads the 87-branch, Houston-based bank, isn't personally involved in the brave new world of social networking Web sites, but he certainly knows what they are. And thanks to his lawyer, his bank is successfully navigating the legal land mines they can contain.

The trouble wasn't that bank employees were participating in these popular sites, which create an online environment where friends can communicate with each other and share personal messages, private information and family photos, says Murphy. Rather, Murphy was concerned about whether the bank's human resources department could -- or even should -- access these sites in the course of the hiring process.

So he and Amegy's senior vice president and human resources director, Alicia A. Blaszak, called in the bank's longtime labor and employment lawyer, Cristina Portela Solomon, for answers.

Together, they developed a policy to be followed by anyone and everyone connected with Amegy when filling the 45 or so positions that open every month in the 2,000-employee company. That policy has not only served the bank well over the past year, but it's the cornerstone of an ongoing evaluation of how to best utilize online resources when it comes to smart staffing strategies.

It all started about a year ago, Solomon recalls, during a conversation she was having with Blaszak. Solomon, a Houston shareholder in the labor and employment practice group at Winstead, has represented Amegy for about 10 years; Blaszak says the bank always has worked closely with her so as to "be proactive about anticipating any potential issues."

When Murphy and Blaszak started hearing more and more about social networking Web sites in a business rather than in a strictly personal context, they deemed it an issue they needed to know more about and called Solomon for guidance.

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.

The teller position is one that can't be done part time, and it can't be done from home, which is why the company representative didn't want to hire someone who was pregnant, Solomon explains.

"If you hired her and you didn't know [about the pregnancy] and then she had attendance issues, you could fire her -- it's a legal reason," Solomon says. "But the fact that you didn't bring them on board to begin with, that would be hard for the employer, once they'd been exposed to illegal information, to be able to demonstrate that it wasn't the fact that she was pregnant, it was something else."

Subscribe to Texas Lawyer