How Internet Searches of Job Applicants Expose a Company

The Perils of Internet Searches Using the Names of Job Applicants Exposure to Liability
Many employers, in the interest of finding information about applicants or current employees, periodically or routinely conduct internet searches with the name of the person about whom the company desires more information. Many employers discover positive information about the applicant that was not evident on the applicant's resume and application; however, employers also happen upon other valuable information as well, that indicates an applicant's faults that may affect job performance if the applicant were to begin work for the company. Facebook, Twitter, Google profiles, MySpace, and LinkedIn can be goldmines for discovering indicators that will not be apparent in the application materials submitted by the applicant to the employer. Although these searches are commonly conducted by employers, the use of internet searches to make hiring decisions regarding certain applicants for a position can expose an employer to liability under Anti-discrimination Laws, whether federal, state or local, Privacy Rights, and the Fair Credit Reporting Act, amongst other laws. Avoiding discrimination claims If an employer locates a picture of an applicant on the internet, the picture may make evident the applicant's race, gender or other indicator of a protected class of individuals under, for example, the Equal Employment Opportunity Laws. Companies routinely discourage or prohibit applicants from submitting photographs of themselves with their application materials for the very reason that it could subject the employer to discrimination claims if they do not hire the applicant. If the employer locates a photo of the applicant by other means, the employer has continued to expose themselves to a potential discrimination claim. Furthermore, if an applicant has flagged certain organizations or comments on Facebook with the "Like" (thumbs-up) designation, these facts could point to protected classifications that could also lead to a discrimination claim if the applicant is not hired. Also, it is not unusual for an applicant's religious affiliation or whether or not they served in the armed forces to be evident in their profiles on social media and networking sites.
 Reasonable expectations of privacy Privacy-related rights can also be an issue for employers who navigate the internet for information on potential hires. An individual must prove that he or she has a reasonable expectation of privacy to prove a claim for invasion of privacy. Individuals who post personal information on the internet for the public to view will likely have a difficult time proving that he or she had a "reasonable expectation of privacy." The applicant, however, may have protected his or her personal information with a password or other privacy controls that limit access to the information. If the employer poses as a "friend" of the applicant or uses a third party with certain privileges to gain access to the personal information about the applicant, it may subject the employer to liability. The applicant may have postings of particularly relevant information, such as sleeping at work, goofing off, disparaging the former employer, etc., but it could be considered private. The employer may also be in violation of certain software licenses, terms of use requirements, and other conditions imposed upon the users of the particular site. Searching in compliance with Fair Credit Reporting Act Many employers require applicants to agree to certain background checks, such as criminal background checks, credit checks, etc.
However, background checks such as these are not protected under the Fair Credit Reporting Act unless the investigation is conducted by a third party reporting agency. If the employer conducts its own background checks on applicants, the employer does not enjoy the protections of the Fair Credit Reporting Act. Using a third party is not without risk, however, because the third party search must be conducted in compliance with the Fair Credit Reporting Act. Search for one, search for all If an employer makes the decision that it is important for their purposes, at some point in the hiring process, to conduct internet searches of applicants, the employer's policy should include the requirement that once an internet search is conducted on one applicant, it must be conducted on all remaining applicants. A seemingly brief and innocent internet search of John Doe or Jane Doe who has applied to work at your company can expose your business to discrimination claims, privacy violations, and Fair Credit Reporting Act violations. Please contact us if you have additional concerns or for further guidance in the area of establishing policies and guidelines for internet searches of applicants who are applying for a position with your company. Dan A. Penning