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Too Much Information: The Dangers of Googling Job Applicants

By Dani Vanderzanden and Meredith French, Day PItney LLP

 

Although the Internet can provide useful information about job applicants, employers must exercise care to limit potential liability and negative publicity.  Employers should develop policies that balance the employer’s desire for information against the prohibitions against discrimination and an individual’s right to privacy.  Employers should prohibit attempts to circumvent privacy settings or encryption.  They should prohibit the consideration of information -- whether learned on the Internet or otherwise -- that relates in any way to a candidate’s membership in a protected class.  And, employers should limit Internet searches to those that will reveal only information that legitimately relates directly to job-related matters and the candidate’s job qualifications.

 

 A variety of Internet tools reveal facts and opinions about candidates.  Searches will provide numerous websites that feature a person.  Social networking websites, personal blogs and online diaries disclose different types of information, much of which the applicant herself posts.  Although self-published details may be reliable, many of these sites allow other Internet users to post information and pictures without any input from the subject of the comments.  One glaring example is JuicyCampus, a relatively new site on which college students often make malicious comments about one and other.  Employers should avoid basing hiring decisions on statements that are likely to be inaccurate and should consider only matters that are job-related.

 

Although Massachusetts courts have not yet published any decisions that involve claims against an employer who conducted an Internet search of a job applicant, there are several potential avenues that an aggrieved, rejected candidate could follow to seek redress.  Reliance on Internet searches could expose an employer to claims of discrimination.  Through the Internet, employers may learn protected-class information (i.e., sex, race, age, marital status, creed, color, national origin, sexual orientation, and physical or mental disability) to which they otherwise might not be privy before -- or even following -- an interview with the applicant.  An employer who improperly relies on such information, and chooses not to hire a job applicant might face discrimination claims.  Even if an employer does not have any illegal motive in its decision not to hire someone, the risk of negative publicity is great.

 

Although the Internet is a public forum, and informal searches on it generally do not invade one’s privacy, an employer who circumvents privacy protections could face liability for invasion of privacy.  Social networking sites may have privacy settings that allow the user to restrict access to her page.  Accessing information of this nature, which was put online for quasi-public viewing, is not likely to support an invasion of privacy claim.  The greater the privacy protections on a site, however, the more likely a court will be to find an invasion of privacy.  If, for example, a technologically sophisticated employer accesses encrypted files, privacy protections and various criminal computer hacking laws likely would be implicated.  Circumventing privacy protection also could expose the employer to negative publicity, particularly given that disgruntled employees and rejected applicants could use the Internet to set up sites that identify companies who conduct online research about job applicants, or, worse, illegally discriminate on the basis of information that was obtained online.

 

Currently, a potential employer who searches the Internet need not disclose such practices, except in litigation.  This may not always be the case.  Finland has made searches of job applicants illegal, and lobbyists in the United Kingdom seek a similar prohibition there.  Discovering that a search was conducted is, however, possible.  Forensic experts can identify the Internet addresses of those who have viewed information on the Internet and the more savvy job applicants likely will learn who has visited their websites and web pages.  Thus, employers need to be cautious when considering how to use Internet resources.

 

Because employers need the flexibility to conduct searches of job applicants, a policy completely barring online research of applicants often is unrealistic.  To limit the potential for illegal use of the information learned and the appearance of impropriety in hiring practices, it is best to permit Internet searches only after the employer has met the applicant in person.  This will limit an employer’s ability to consider visually apparent characteristics that justify class protection, except following a face-to-face interview.  Finally, employers should conduct only searches with the applicant’s name and key words that would reveal information pertinent to the hiring decision.  For example, if an employer Googles “John Doe” and “felon” the employer is much more likely to learn only information on which the employer has a reasonable basis to rely.  Although cautious practices may not eliminate all of the risks of reviewing the Internet’s myriad resources, they certainly will help an employer defend against claims brought by rejected applicants.

 

Dani Vanderzanden is a partner in Day Pitney LLP's Labor and Employment Department. She defends employers against claims involving current and former employees and advises employers with regard to all aspects of employment law.

 

Meredith French is an associate in the firm's Commercial Litigation Department. Meredith practices in the areas of insurance and reinsurance disputes, products liability litigation, labor and employment litigation, and other general litigation matters.