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To Search or Not to Search….


April 10, 2010

Read Time

4 minutes


When your company is seeking a new employee, what kind of information do you gather on the candidates who apply?

According to a 2009 survey by CareerBuilder, nearly half of employers use the Internet to learn more about job applicants. Information available on Web sites, blogs, LinkedIn, Facebook, Twitter and other social networking sites can provide useful insight into a candidate’s professionalism and communication skills, as well as an overall impression of the candidate as a person. These types of searches also are quick and inexpensive. However, before conducting Internet searches on prospective employees, companies need to consider the risks involved in gathering and using this information and take appropriate steps to minimize these risks.

So what are the risks? There’s the risk that performing the search will violate the prospective employee’s privacy rights or laws that prohibit certain types of searches. There also is the risk that, as a result of the search, the company learns information that it legally cannot consider in making a hiring decision, and that it would have been better off not knowing (such as the candidate’s sexual orientation, whether she has children, whether she has engaged in union activity, etc.). If an individual is not hired, she could bring a lawsuit for discriminatory failure to hire claiming that the company’s decision was based on impermissible information.

This does not mean that employers should stop doing Internet searches on prospective employees. Rather, companies should consider taking the following steps to minimize the risks of such searches:

  • Have someone other than the person making the hiring decision conduct the search and only pass on relevant information to the person making the hiring decision. By having someone else do the search (such as a human resources staff member or other employee in HR), the employees making the hiring decision don’t learn about a candidate’s protected status or activity and don’t see pictures (such as a woman with her young children) that could sway their impression of the candidate and her commitment to the position. The employee conducting the search should, however, pass along relevant information that shows, for example, that the prospective employee is an effective communicator, has good judgment or makes Facebook posts during working hours.
  • Be consistent. It isn’t necessary to have an all or nothing approach to pre-employment screening, but companies need to be consistent both in terms of which employees they are investigating and the types of searches they are conducting. If one candidate is being screened at a particular stage of the recruiting process, then each of the other candidates for the position and similar positions also should be screened at the same stage, and the searches all should be conducted in the same manner.
  • Be careful with outsourcing. When Internet searches are conducted by third parties, there’s a risk that the requirements of the Fair Credit Reporting Act (FCRA) will be triggered. Either conduct the search in-house or make sure that you obtain a FCRA-compliant authorization before the search.
  • Only access information you are authorized to access. Employers can get in trouble when they access information that they don’t have the authority to access. Keep your search limited to publicly available information. Do not borrow passwords from other employees or guess at passwords to access information.
  • Question the accuracy of the information you find. One of the problems with online searches is that it’s difficult to be sure whether the Jane Smith you’ve found online is the same person whose application is sitting on your desk. It’s also difficult to determine whether an online post was actually made by Ms. Smith, or whether it was made without her knowledge. The key is to look for trends and think critically about whether the information you’ve uncovered seems to fit.
  • Include an agreement to be searched as part of your employment application. Add a sentence to the end of your company’s employment application stating that the candidate consents to Internet searches being conducted, and consents to the use of any information that might be found. This doesn’t help with respect to FCRA requirements, but it can help defeat an invasion of privacy claim.
  • Be careful how you share disparaging information. Sharing disparaging information – even within your company – can open the door to a defamation claim if the information turns out to be false. Do your due diligence before communicating any negative information you find regarding a prospective employee.
  • When in doubt, consult with an attorney before taking action. A company’s exposure relating to Internet searches grows exponentially when a hiring decision is made based on the information that has been uncovered. If you have any question as to whether you can properly rely on information in making an employment decision, or if you are unsure whether your search was lawfully conducted, check with an attorney who understands both employment discrimination issues and employee privacy issues before making a hiring decision.

Happy searching!


Filed under: Employment & Executive Compensation

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