How Far Is Too Far?
EMPLOYERS AND THE USE OF ONLINE SEARCHES
Natasha J. Baker
Natasha J. Baker, an employment law attorney with Curiale Dellaverson Hirschfeld & Kraemer in San Francisco, can be contacted at nbaker@cdhklaw.com.
Given the explosion of social networking sites such as MySpace and search engines such as Google, an employer could learn more about a job applicant or an employee online than during an interview or in the workplace. In fact, recent polls indicate that human resources professionals and recruiters regularly conduct Google searches on applicants and employees or review their social networking profiles.
Are such online searches by an employer legal? The “bright-line” rule is that if the online search reveals protected categories of information about the individual, such as race or age, an employer is legally prohibited from using that information. Beyond those instances, some argue that the information on Google, MySpace, and other sites is fair game. The Internet poses a whole set of unique issues, and whether employers should be able to use information posted online is not as clear as it may seem. Consider the following:
The source of information. If an applicant or employee demonstrates a lack of discretion and judgment by posting spring break photos showing himself or herself apparently intoxicated on a MySpace page, an employer who finds these photos online may consider the photos when deciding to hire or retain the employee. There is no right of privacy where an applicant or employee voluntarily posted the information. Employers may be particularly concerned about the posting of such photos online if the applicant’s or employee’s position involves substantial client contact or if the online conduct could significantly impact the employer.
However, what if the information was posted by a third party? For example, someone seeking revenge could have posted those photos or a negative blog about the applicant or employee. Should employers consider this information? How will they know whether the content is true or who posted the information? The answer is they probably will not be able to know for certain, so information like this is gossip, and employers should use this information at their own risk.
Personal judgments. If an applicant or employee can satisfactorily perform the basic functions of his position, should his online profile or hobbies matter? You may think it is perfectly understandable for an employer rendering an employment decision to consider an employee’s or applicant’s drug use or crude sense of humor revealed by an Internet search; however, do you think it is equally understandable for the employer to make personal judgments based on an adult employee who collects dolls and has a Web site devoted to them? The employer may find that behavior unusual, but does that hobby impact the employee’s ability to do the job? Probably not. Making personal judgments about individuals’ quirks or odd habits based on Internet searches can become a slippery slope because employers are in the position of determining what is “normal” or “socially acceptable.” Personal judgments like these can lead to hurtful stereotyping and unfair treatment.
Information about the employer. Bloggers and other Internet users need to be especially mindful of what they say about their employers online. Employers have and can discipline or terminate employees caught posting confidential, proprietary information about the company or its employees online. Further, they may also act where employees are posting disparaging statements about the company or its employees. Applicants who engage in either type of behavior should not be surprised to be rejected for a position with the company in question.
With the growing popularity of social networking sites, online participants should exercise freedom of speech but recognize the risks before they post that photo or blog. Currently, it is incumbent upon employers who engage in this type of Internet research to separate the actionable conduct (disparagement) from the nonactionable (weird hobby).
 
 

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