Should Employers "Google" Applicants?

February 2009

More and more employers are using the Internet to gather information about job applicants. Indeed, the use of online social networking Web sites such as MySpace, Facebook, LinkedIn, and others has expanded beyond college campuses. Many professionals maintain such Web sites to broaden their personal and professional networking.

by Paul J. Siegel, Esq. and Ana C. Shields, Esq.
Jackson Lewis LLP

Jackson Lewis LLP recently conducted a survey of employers in the New York metropolitan areas (Nassau, Queens, Suffolk, Riverhead, and White Plains) to determine how online social networking sites have affected the employer-employee relationship. It revealed that some employers use these sites as an informative recruiting and screening tool. Twelve percent reported use of online social networking sites to recruit new employees. An equal percentage admitted to using online social networking sites to assess applicants before extending a job offer. Two percent reported rejecting applicants based on information learned from an applicant's online profile.

Even after a job offer is made, online social networking may impact employment. Two percent of survey respondents have terminated applicants based on information learned from an applicant's online profile.¹

Before taking an adverse personnel action, an employer should be certain that review of online resources and taking that adverse action are lawful, i.e., is it lawful or advisable to use "Google," Facebook, or other Internet resources to gather information on job applicants. The bottom line is: there's no federal law expressly prohibiting it, and only a few states arguably do not allow it.

Advantages and Disadvantages

Below is a summary of some of the advantages and disadvantages of using these sources in personnel matters.

1. A great advantage is that an employer can learn more about the applicant's background, resume, experience, articles the person has written, professional reputation, etc., than it may learn during a "scripted" interview. The employer also may learn of personal details that could indicate a lack of professionalism or maturity, such as participation in wild parties or use of inappropriate or discriminatory language on a MySpace page.
2. Although an employer is merely reviewing publicly available information, the employer could learn something that it would rather not know when evaluating an applicant. For example, the employer may learn that the applicant is a member of an otherwise non-obvious protected class. For example, they may learn the person is homosexual, a member of a particular religious group, a foreign national, disabled, has children or other family responsibilities, or has some other protected characteristic (either personally or by association). If a candidate is not hired, and is able to show that such information was uncovered in an Internet search, then the candidate could allege that the impermissible criterion was the reason he or she was not hired. The employer might then be required to make a showing that it did not take into account the prohibited information.
3. There is an argument, although a weak one, that "Googling" an applicant may be an invasion of privacy. An applicant would be hard pressed to establish an expectation of privacy in information publicly posted about an individual (particularly if he or she posted it). It is conceivable, however, that a court could find that a person intends his or her posted information to be viewable by friends and the general public, but has a "reasonable expectation" that prospective employers will not obtain it. That strikes us as far-fetched unless unauthorized access was obtained to an otherwise protected site.
4. Some states, such as New York, have enacted statutes prohibiting discrimination based on lawful, off-duty activities. "Googling" applicants in such states may run afoul of these laws. For example, if through an Internet search an employer learns that an applicant is a strong supporter of labor organizations and does not hire the applicant, the employer must be able to articulate a legitimate reason for rejecting the candidate.
5. California law requires employers to disclose to an applicant any adverse information they find in public records in connection with an employment application. This requirement is separate from the California or Federal Fair Credit Reporting Act, which applies when a third-party vendor is used to conduct a background check.
6. An issue also arises as to whether the information is reliable. An Internet search may disclose information about someone else with the same name as the applicant. Also, information about an applicant could have been posted by a third party and may be untruthful or defamatory. Although there is no specific cause of action for rejecting an applicant based on erroneous information that an employer believes to be true, an applicant could claim that an employer's reliance on Internet information was not reasonable. We can envision a lawsuit based on such facts and alleging invasion of privacy, defamation, or some similar claim. You probably would win such a lawsuit, but would not want the hassle.
7. In a case alleging that an employer negligently retained staff, it could be asserted that the employer should have looked at the MySpace page of a prospective employee or conducted a public records Internet search. By failing to do so, it could be argued, the employer failed to discover easily obtainable information that would have disclosed the inappropriateness of that candidate. While prudence may counsel in favor of checking, doing so may be burdensome (and raise legal red flags).

Conclusion

Based on the foregoing, an Internet search of applicants may be more trouble than it's worth. However, we would not necessarily counsel against searches if done properly. Specifically, if such searches are done, similarly situated applicants must be treated the same. In other words, employers should "Google" all applicants for a position (or none). As part of that process, the company should alert candidates that searches will be conducted.

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Ana C. Shields is a senior associate in the Long Island office of Jackson Lewis. Since joining Jackson Lewis, Ms. Shields has practiced exclusively in the area of employment litigation and has been involved in proceedings before federal and state courts, the American Arbitration Association, and administrative agencies. She has advised employers on compliance with various state and federal laws affecting the workplace. Ms. Shields can be reached at or (631) 247-4657.

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¹Complete survey results and other information regarding preventive strategies and positive solutions in the practice of workplace law are available at the firm's website, www.jacksonlewis.com or by contacting Paul J. Siegel, Esq. or Ana C. Shields, Esq., at 631-247-0404 or at or .

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