As employers expand on using social networking sites such as Facebook or MySpace for background checks, consultant Lester Rosen says that the law is still evolving regarding discriminatory information, privacy interests, and other issues.

In an article for Kennedy Information Recruiting Trends, Rosen examines the case of “Stacy the ‘Drunken Pirate’” to glean guidance for employers. Rosen says that if social networking sites are checked pre-employment in the selection process, “employers may gain significant protection by making it abundantly clear on their web site, job posting, application or other places that a person’s public online identity may be viewed. By giving clear and conspicuous notice, an applicant would have a more difficult time claiming that they had a reasonable expectation of privacy on their social networking site. Advance notice by an employer, or even consent, does not mean necessarily that employers can resort to exceptional means to penetrate a social networking site, such as the use of pre-texting or fake web identities, nor is advanced notice a defense to discrimination.”