Evaluation of employee/applicant by social media

Can you base employment decisions on your employee's use of social media? Must you limit the decision to work related issues? The issue is a bit complicated because there is no national act which addresses the issue yet, and there probably wont be anytime soon. More after the jump.
In the NFL players case there was a Minnesota statute which prohibited an employer from disciplining the Vikings players for off duty conduct that was not illegal. Since the discipline was for using a masking substance, not an illegal drug, the Court allowed the case to go forward. The Saints players suit was dismissed because there is no similar protective statute in Louisiana. Employers are in a similar position with social media. Its use must be evaluated on a state-by-state basis. Privacy rights vary as does the presence or absence of employee protective legislation. There may even be some municipal protective laws.

In many states a private sector employer may use private non-job related information to make decisions because there are no restrictions. It would also be permissible in many states to require as a condition of being considered for employment and continued employment that the applicant/employee consent to providing access to social media information. I'm not saying it is advisable to require access, but it would be lawful. In most at-will jurisdictions off-duty behavior can be a legitimate reason for discharge. I'm not suggesting its good HR management, just that its not unlawful. Even in the public sector not all off-duty behavior is protected by the First Amendment.

As for discrimination, a passive review of social media does not equate to asking the wrong question in a ftf interview. When an inappropriate question is asked, the inference is the information will be used to evaluate. That is a step closer to proof of discrimination than merely the opportunity to see information which, if used for a decision, might prove discrimination.

For those in law school, medical school and others who must be licensed by a state board, should beware. Some have already started reviewing social media sites of applicants.