Of Course We Googled the Potential Hire, But How Far Can We Go?

As a reader of this column, I presume you are already taking advantage of the web and social media when vetting potential hires.  There is an inordinate amount of information about potential hires through sites like LinkedIn and Facebook.  A lack of an online presence may, in fact, be a sign the candidate is not right for this industry.  So, what can you do with all of this information?  For better or worse, there have been no cases brought by someone not hired based on something researched on the web, but let’s hope you are not the first.     

Q:    Should we restrict certain websites when it comes to hiring?

Do not completely restrict yourself from using the web’s resources; just make sure the web is used responsibly.  Obviously, you cannot make hiring decisions based on things like race, gender, age, religion, marital or family status.  You cannot even ask questions that would solicit this type of information that is not apparent on most resumes.  Much of the information, however, is available through social media.    Some Facebook profiles include family, religion, political, age and other information you are not supposed to consider.  Even LinkedIn profile pictures reveal race, gender and age.

As long as the hiring decision is not based on one of the forbidden characteristics, there is nothing unlawful about simply knowing the information.  After all, you will learn the person’s race, gender, approximate age and possibly religion or marital status when they come in for an interview. 

Problems could arise, however, if you use social media to prescreen candidates before the interview.  If every candidate you found out was a certain race, gender, age or religion through social media was not called in for an interview, you could face liability. 

Q:    Can I search an otherwise private profile through a “friend of a friend”?

Many social media profiles restrict access to general public.  You could be tempted to access these profiles through a friend of one of the candidates or the through the creation of a fake profile.  It is unlikely someone would sue because a prospective employer found some negative information through less than noble means.  Yet, there have been cases where employers and others have wrongfully accessed what was otherwise private forums and profiles. 

For example, a restaurant manager heard some of his employees created a closed MySpace forum complaining about the restaurant.  The manager coerced the hostess to give him the password to her account.  After reviewing the site, he fired a couple of the employees who then sued.  The jury ruled the company wrongfully terminated the employees citing the unauthorized access to the forum.  The jury relied heavily on the fact the hostess was “coerced” into giving up the access. 

You would also have to be concerned about the Federal Computer Fraud and Abuse Act or CFAA.   The CFAA prohibits exceeding authorized access of databases to obtain information.  Hackers are the target, but creative lawyers are applying it to violations of a website’s terms of service or obtaining information through fake profiles or other malevolent means.  You should be able to view the private profile if one of your current employees is already a “friend,” and they volunteer the information.  Just be careful, because that very same employee could later claim he was “coerced” to give you the information or access.
 

Q:    Are we required to utilize the tools available on the web to research potential hires?

Although social media is ubiquitous, the law does not automatically require you to do Internet searches of every hire.  In certain circumstances, a company could be considered negligent for not doing basic Internet research.  For example, a quick Internet search would reveal the candidate is part of a hate group and has acted out before.  If he then hurts a fellow employee, the company may be negligent.  If the new hire is working with children and a simple search reveals the person has unseemly pictures of himself with young people, then a jury could hold you liable.   

Q:     What if we actually use the information to decline employment?

Nothing prevents you from using the information you find on the web subject to your basic discrimination rules.  Even without overt discrimination, you should make sure you are not being discriminatory.  For example, you may decide not to hire an African-American candidate who has pictures of himself drinking a beer at a club with tattoos on him while holding a fake gun because that is not the image you want associated with your company.  If instead, you hire the white guy who also has a picture on the web at a honkey tonk drinking a beer while draped in a Confederate flag holding a shotgun, have you discriminated?

If you use an outside firm to find candidates for you, you need to make sure you don’t violate the Fair Credit Reporting Act.  While usually applicable to credit reports, it also governs any employment background checks done by a third-party.  Therefore, if a recruiting firm uses the web to perform a background check, the candidate must be notified if the report is used to make an adverse decision. 

Not surprisingly, not everything on the net is true.  If an employee researches a potential hire on the net and then forwards false disparaging information to the boss, there could be defamation liability for “republishing” the libelous information.

The web is invaluable and a trap for the unwary.   More candidates are willing to share more information about themselves.  As a result, the Internet is a goldmine of information to investigate potential hires.  With the increased information comes increased responsibility.  Hopefully, the economy is turning the corner and you can use the web to find good employees without misusing it.