LABOR AND EMPLOYMENT LAW
Googling Job Applicants

By Robert Sprague

As a general matter, job applicants have a lesser expectation of privacy than do employees.

On websites ranging from blogs to dating profiles, the Internet has become a place for people to “air dirty laundry without a thought” (in the words of an article in the New York Daily News). A growing number of employers are beginning to discover the availability of personal information published by job applicants and are beginning to use it to supplement hiring decisions.

This article discusses the need for employers to screen job applicants, significant legal restrictions on the information prospective employers may gather concerning applicants, and whether prospective employers can use the Internet to gather information that would otherwise be prohibited through traditional prescreening methods. It also discusses future trends that may result from prospective employers using the Internet to supplement pre-employment screening.

Employer concerns. The realities of modern U.S. employment do not favor the prospective employer who relies solely on a résumé and interviews to make a hiring decision. The application of the negligent hiring theory imposes liability on an employer when it “places an unfit person in an employment situation that entails an unreasonable risk of harm to others.” Ultimately, it is a theory that imposes on an employer an obligation to hire “safe employees.” This duty requires that employers investigate employment candidates.

Employers also face legal restrictions in the use of ability, integrity, and personality tests. As with pre-employment applications and interview questions, employers cannot use tests as a means to discriminate against protected classes. The Equal Employment Opportunity Commission (EEOC) has issued guidelines in the use of pre-employment tests as a selection procedure. The use of any selection procedure that has an adverse impact on the hiring, promotion, or other employment opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory unless the procedure has been validated in accordance with the guidelines.

Conducting background investigations of applicants can be problematic. Employers may conduct their own in-house investigation with minimal legal oversight. Owing to limited resources, and perhaps for better accuracy, employers often turn to outside agencies to obtain a credit history report for applicants. If so, the use of such reports is regulated by the Fair Credit Reporting Act. Under the act, employers must notify the applicant in writing if a report is to be obtained, and employers must notify an applicant if a credit report is used in making an adverse decision. Prospective employers face minimal restrictions when investigating background information not specifically related to credit histories, such as civil litigation and certain other financial-related records. However, the Bankruptcy Act prohibits employers from discriminating “with respect to employment” against an individual who is seeking or has sought bankruptcy protection under the act.

Employers face additional restrictions under the general notion of a job applicant’s right to privacy. As a general matter, job applicants have a lesser expectation of privacy than do employees. And, as a general rule, employees already have minimal workplace privacy expectations. Most workplace-related invasion of privacy actions are based on the common law tort of intrusion upon seclusion. The Restatement (Second) of Torts defines the tort of intrusion upon seclusion as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” One could envision that an overly intrusive investigation by a prospective employer could invade the privacy of a job candidate.

One factor in favor of prospective employers using the Internet to investigate applicants is that most of the information the employer would encounter on the Internet is self-published. There is a difference between, on the one hand, highly personal facts acquired through deception and then reported to an employer, and, on the other, the same facts freely and openly published for anyone with an Internet connection to see.

Prospective employers might be constrained from attempting to circumvent access restrictions placed on a personal web page or blog limiting who may view the information. In terms of the common law of privacy, the issue would be whether the access to the information by circumvention would be considered highly offensive to a reasonable person.

If using circumvention, the prospective employer also may run afoul of federal law protecting the security of information stored on the Internet—specifically, the Stored Communications Act (SCA). In general, the SCA provides privacy protection for communications stored by Internet websites, in part by prohibiting unauthorized access to stored communications.

Employers perform background checks and review employment histories of applicants based on the notion that past performance is the best predictor of future behavior. Theoretically, there is no better record of past employment performance than a reference from a previous employer. However, despite a legal environment described by one commentator as “hospitable to the free exchange of information about prospective employees,” employers are reluctant to provide information about prior employees beyond just dates of employment and job classification. This reluctance stems from a fear of defamation suits by former employees for whom references are provided. In most instances, employers are granted a “qualified privilege” to provide information to prospective employers. The majority of states have enacted legislation to protect employers, for the most part insulating previous employers for communicating information about the employee’s ability, job performance, or other work-related information—unless the previous employer acts with malice.

Googling job applicants. There is a wealth of information that people have provided about themselves on the Internet, and many employers have begun to use that information, primarily to screen out applicants. The information being gleaned from Internet searches is open to the public. Social networking sites such as MySpace require registration before their content can be viewed, but anyone can register for access.

Although searching the Internet for information about a candidate might be beneficial in determining whether the candidate is a good fit for the position, Internet searches also allow prospective employers to discover information about candidates that would otherwise be prohibited in traditional applications and interviews, such as an applicant’s age, marital status, or religious affiliation.

Future trends and possible solutions. One solution to any problems associated with employers using Internet searches to investigate job candidates is for the candidates to publish less information about themselves. Information published on the Internet raises new challenges—primarily because (1) it is usually voluntarily published by the applicants themselves, (2) it can be easily discovered, and (3) it is, so far, an informal supplement to traditional job candidate screening. Therefore, it is unlikely that employers have established formal procedures for how to use information gleaned from the Internet or whether to use Internet searches at all. Employers therefore face potential liability for using information they find published on the Internet to screen out job candidates—if they would otherwise be prohibited from using that same information under traditional prescreening methods. One commentator has recommended that, to avoid such liability, prospective employers have a non-decision maker conduct the Internet search and filter out information relating to protected characteristics before the search results are passed along to the decision maker. As a general matter, hiring professionals advise that information gleaned from Internet searches should not be the sole basis for not considering a candidate, as this would result in basing a hiring decision on just one (possibly incomplete or inaccurate) assessment.

For More Information About the Section of Labor & Employment Law

- This article is an abridged and edited version of one that originally appeared on page 19 of The Labor Lawyer, Summer 2007 (23:1).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221 or go to www.ababooks.org.

- Website: www.abanet.org/labor.

- Periodicals: The Labor Lawyer, journal, published three times per year; Labor and Employment Law, newsletter, published quarterly; substantive committee newsletters, published biannually.

- Books and Other Recent Publications:

State-by-State Surveys: Covenants Not to Compete, 5th ed.; Employee Duty of Loyalty, 3d ed.; Tortious Interference in the Employment Context, with 2005 Supp.; Trade Secrets, 3d ed.; Wage and Hour Laws, with 2006 Cum. Supp. Other Publications: The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act, 5th ed.; Age Discrimination in Employment Law, 2006 Supp.; Equal Employment Law Update, Fall 2006 ed.

Robert Sprague is an assistant professor in the Department of Management and Marketing at the University of Wyoming College of Business. He may be reached at .

Copyright 2008

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