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
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.
- 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.
- 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.
- 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.
- 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.
- 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
is used to conduct a background check.
- 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.
- In a case alleging that an employer negligently
retained staff, it could be asserted that the employer
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).
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.
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