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Legal Clinic

Researching Job Applicants Online

Question: Some of our hiring committee employees have gotten into the habit of using the Internet to research our job applicants (both before and after they come in for interviews). Because something tells me this may not be such a good idea, I have told them not to do this while on company time, as I can't control what they decide to do in their free time. Is my concern warranted?

Monday, September 23, 2013
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Answer: Your intuition is spot-on, as conducting Internet research on applicants can pose many liability problems for employers -- especially when it affects hiring decisions, whether or not it is conducted on company time. While Internet research can be a powerful tool for human resources, it also has the potential to result in lawsuits and liability. Therefore, before employers search or encourage someone else to search for information about prospective hires on the Internet, employers should be aware of the potential pitfalls and develop protocols and procedures to significantly reduce to liability exposure.

The "Hows" of Internet Research

Employers must tread cautiously about how they gain access to the Internet information on job applicants. This is because many state laws prohibit employers from requiring or requesting prospective and current employees to disclose their username and password to their personal social media accounts. See, e.g., Daniel Saperstein, Employers Cannot Access Applicant or Employee Personal Social Media Accounts, Says Nevada, Proskauer Client Alert, (June 26, 2013). In addition, courts have found that social-media accounts configured for privacy are protected by the federal Stored Communications Act (the " SCA" ). Only information that is provided to the employer by an authorized user or that is not configured for privacy is unprotected by the SCA. See, e.g., Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 2:11-cv-03305-WJM-MF (D.N.J. August 20, 2013). However, procuring information about a candidate from an authorized user who is also an employee could potentially violate the SCA and state social media password laws if it is determined that employer coerced by the authorized user employee to provide it with such information.

The "Whats" of Internet Research

Employers should also tread cautiously in selecting the content of what they learn through Internet research, as well has how that information impacts their employment decisions. Even if the employer seeks only public information, it may nonetheless be exposing itself to categories of information that the law prohibits an employer from considering in hiring and employment decisions. The law -- federal, state, and, often, local -- prohibits employment discrimination based upon a large number of characteristics, including gender, color, pregnancy, religion and disabilities. And the body of protected characteristics has been growing, with many jurisdictions in recent months adopting laws prohibiting discrimination against candidates based upon credit history, sexual preferences and employment status. See, e.g., Daniel Saperstein, Nevada Tenth State To Restrict Employer Use of Credit Checks, Proskauer Client Alert (June 5, 2013); New York City Council Overrides Mayor's Veto To Prohibit Discrimination Based on Unemployment Status, Proskauer Client Alert (March 14, 2013). Internet research could easily result in an employer gaining knowledge about many of these protected traits -- and in so doing, losing the important defense of lack of knowledge of a protected characteristic if the rejected employee later sues for discriminatory hiring practices. In one highly publicized case, the University of Kentucky was sued for allegedly denying a highly qualified astronomer a position after Internet research revealed the candidate's evangelical Christian faith. See, e.g., Gaskell v. Univ. of Kentucky, 5:09-cv-00244-KSF-REW (E.D. Ky.)); Mark Openheimer, Astronomer Sues the University of Kentucky, Claiming His Faith Cost Him a Job, N.Y. Times (Dec. 18, 2010).

Besides protected characteristics, the National Labor Relations Board has been very active in regulating how employers -- even non-unionized employers -- use information acquired through the Internet in employment decisions. The National Labor Relations Act prohibits an employer from interfering with an employee's right to engage in "concerted activity"  for "mutual aid and protection." NLRA sec. 7, 19 USC. ยง 157. For example, the board recently found that employee complaints communicated via Facebook constituted protected concerted activity and awarded aggrieved employees who were terminated on account of their postings, reinstatement and full backpay. Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012).

While technically an employer does nothing wrong if it makes the employment decision without regard to the protected characteristic, just possessing the information exposes the employer to the claim that the protected characteristic colored the employer's decision-making process.

Potential Solutions

Given the above concerns, if an employer wants to use the Internet to research potential candidates, it would be best to delegate that function to someone insulated from making the actual employment decision. This will usually not be a supervisor. The information gleaned from the Internet should then be vetted to pass on to the decision maker only information that is relevant to the position and does not implicate protected characteristics. Obviously, whoever screens the research must be knowledgeable of the various protected characteristics, which, as noted above, can involve a dizzying array of federal, state and local laws -- and just to complicate matters, these laws are currently hot and constantly evolving. As always, the employment decision-making process should be thoroughly documented -- while not a failsafe, it can prove valuable to an employer seeking to prove the legality of a challenged decision.

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Another option is to outsource the Internet research about candidates to a third-party vendor. In doing so, however, employers should be mindful not to run afoul of the Fair Credit Reporting Act, and they should provide employees or applicants with notice of any adverse employment actions based upon the reports. Advisory Letter re: Social Intelligence Corp., Federal Trade Commission, May 9, 2011; see also Leslie Fair, The Fair Credit Reporting Act & Social Media: What Businesses Should Know, Business Center Blog, FTC.

As studies show 39 percent of companies use social networking sites to research candidates, and of those, 43 percent reported finding information that caused them to not hire someone, it is clear that such research is becoming a common HR tool. More Employers Finding Reasons Not to Hire Candidates on Social Media, Finds CareerBuilder Survey, CareerBuilder.com (June 27, 2013).

Regardless of who does the research or how it is done, developing an unbiased and consistent protocol for the gathering of the research and an unbiased, business-related practice for how it is utilized is key. Utilizing strict protocols for searching as well as documenting these protocols and the resultant searches will go a long way to protecting employers against allegations of bias. Also, consistency is key. Any Internet search conducted for one potential hire should be conducted for all, because failure to be consistent will likely result in disparate treatment and/or discrimination claims.

Keisha-Ann G. Gray is senior counsel in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Aaron Feuer assisted with this article.

 

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