Performing Web searches on job applicants carries risks

November 27, 2012

By Jean Ohman Back, Attorney

Social media — particularly social networking sites like Facebook, MySpace, Twitter and LinkedIn — have exploded in popularity over recent years.

At the end of June, Facebook reported that it had 955 million monthly active users, with 552 million users daily on average. LinkedIn reported that it had more than 175 million users in more than 200 countries and territories.

Given the popularity of social media, and the competitive job market, employers are increasingly turning to social networking websites as a way to gain information about job candidates. A Career Builder survey from April reported that roughly 37 percent of employers perform general Internet searches on job applicants as part of the hiring process.

These employers reportedly learned valuable information about an applicant’s professionalism and personality from an applicant’s profile. About 34 percent of the managers surveyed stated that they rejected a job applicant based on information discovered in an online search, such as negative comments, pictures showing alcohol or drug use, and even poor communication skills.

The risks of Internet searches made before the job interview

While the Internet can be a powerful tool to assist an employer in learning about the good and bad characteristics of job applicants, employers must balance the ability to obtain this information with the risks that the Internet search could expose them to legal claims for breach of privacy, or for violation of state and federal anti-discrimination laws.

While it is not illegal to learn about these characteristics before interviewing an employee, best practice is to wait to perform such a search until after applicants have passed the first or second rounds of interviews.

As a general rule, there is no legal prohibition on employers reviewing publicly accessible information, such as information on public social networking sites. People making public posts have no expectation of privacy. However, accessing a site that is password protected without the applicant’s permission could form the basis of legal claims.

Similarly, in reviewing an employee’s online profile, employers may become aware of personal information about the job applicant that the employer may not legally consider during the hiring process. State and federal laws prohibit employers from basing employment decisions on an applicant’s protected personal characteristics, including race, color, religion, sex, sexual orientation, national origin, marital status, age, military status, disability or genetic information.

One risk of searching applicants online is that potential employees may claim they were not hired because the employer discriminated against them on the basis of a protected characteristic that the employer learned from reviewing social media sites.

Another risk is that the information could be inaccurate, or the site that the employer accesses may not belong to the applicant. Therefore, employers should determine the accuracy of the information that they are viewing.

Screening guidelines

Employers who choose to screen applicants online should establish guidelines. These guidelines should include:

  • Informing the applicant on the application that the employer will conduct an online search of public information and obtaining the applicant’s written consent to do so. This action will provide the applicant an opportunity to clean up his or her web presence prior to an online search.
  • Searching only those final applicants who have already passed several rounds of interviews and who already meet the preferred requirements for the position.
  • Have employees other than decision makers conduct the search and prepare a limited report on the findings.
  • Create a guideline to identify what the employer is looking for and create a specific list of red flags (such as illegal drug use). The searcher should omit information revealing applicant’s race, gender, national origin, sexual orientation, age or genetic predisposition.
  • Identify specific sites to be searched and make sure that the employee conducting the search only looks at those specific sites.
  • Do not try to access sites that are password protected.
  • Do not “friend” an applicant on Facebook in order to conduct your search.
  • Retain records from your Internet searches.

While online searches provide useful information regarding an applicant’s character, employers must be cautious in gathering this information. Establishing and following screening guidelines, as set out above, will help reduce risks and provide a fair process for applicant selection. 

As published Portland Business Journal, November 2, 2012


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