By Monica Moore
Feb. 18, 2010
The Internet is a rich source of information, providing quick and relatively easy access to seemingly unlimited data. With the increasing popularity of social networking sites such as MySpace and Facebook, and search engines like Google and Yahoo, employers are finding it easier and less expensive to conduct background checks on potential employees. But what happens when Internet activity intersects with the employment world?
Employers understandably want to obtain as much relevant information as possible about job applicants. Conducting research outside the formal interview process, however, carries possible legal risks, placing employers at risk of discrimination claims where employment decisions are influenced by personal details obtained from the Internet.
There are currently no known laws concerning Internet searches or forbidding what or how an employer can use information gleaned from the Internet in its employment decisions. Many of the legal issues raised by Internet searches do not circumvent the traditional rules regarding pre-employment inquires. With any background check, both federal and state law prohibits employers from making employment decisions based upon categories such as race, color, gender, disability, age and national origin. Information garnered through an Internet search, therefore, cannot be a basis for employment decisions if that information covers a prohibitive pre-employment area.
Employers researching job applicants online will likely learn much information about an applicant that would not, and could not, have been discovered through an interview since many online networking profiles generally present personal information about an individual that likely would not come up in an interview. Discovery of personal information in this manner is not unlawful, however, an employer cannot base employment decisions on all information uncovered via the Internet. For example, an individual’s online profile may reveal his or her religious affiliation or a disability that is unrelated to the ability to perform the job at issue. By learning this type of information online, the employer may have to explain that the information did not enter into the hiring decision.
Just as an employment application should not solicit information that may give rise to a wrongful failure to hire claim, information obtained through an Internet search should not be used to unlawfully weed out potential candidates. To that end, an employer should maintain thorough records that show its employment decisions were based on unbiased, legal considerations.
Indeed, technology has made search on potential employees easy, but employers are cautioned with regard to the use of information they find on the Internet. There is a great risk in relying on Internet sources to screen applicants since you have no assurance that the information you find about the person you check is accurate. For example, it is possible for a person to create a fake profile or publish incorrect information about another individual. Second, you cannot make blanket judgment based on what you see on the Internet. A picture of an applicant drinking with friends does not necessarily mean the applicant has a drinking problem or will be an unreliable employee. Third, an online search may uncover a great deal of personal information, some of which has no employment-related purpose or may reveal information about an applicant that is better left unknown. In such case, it is difficult to “unring the bell” and pretend that you did not see the information. For example, if an applicant’s personal profile discusses his affiliation with a particular religious group, it is easier to defend a religious discrimination claim if the employer can say it did not know about the applicant’s religious affiliations.
As with any background check, if the employer uses a third party to conduct the check, the information found online may fall under the Fair Credit Reporting Act (FCRA), which has disclosure and notice requirements. The FCRA is designed to protect the privacy of information and ensure that the information supplied by consumer reporting agencies is as accurate as possible. The FCRA applies to consumer reports obtained from third parties. Thus, an employer may avoid the FCRA’s requirements by conducting background checks internally - without the assistance of an outside company.
Employers that make adverse hiring decisions based on the information gleaned from an Internet search could face potential litigation. The practice could expose employers to liability because the sites can contain so much personal information about an individual, including information that is not properly the subject of an employment application or job interview. If you decide to do Internet background checks, you should take special care to make decisions based on job-related factors and to ignore information about protected characteristics. Also, be sure to clearly document the legitimate business reasons for the hiring decisions. Finally, be consistent - if you conduct Internet searches of applicants, do so in a consistent manner so as to avoid potential discrimination claims.
Monica M. Moore is a senior attorney at Nemeth Burwell, P.C., which specializes in employment litigation, traditional labor law and management consultation for private and public sector employers and works exclusively with management to prevent, resolve and litigate labor and employment disputes.