Corporate Legal Advisors SM

The Legal Risks of Online Research
Job Applicants and Employees

Concerning Job Applicants (Digging For Digital Dirt)
  1. Do not research until after a personal interview: Research can give you information that is off-limits when making hiring decisions. For example, a Facebook posting where an applicant discusses her age, physical or mental disability, religion, marital status, etc. is the last thing you want to see before a personal interview. The risk is that you deny the applicant a job and have to prove that you acted for reasons other the impermissible reasons you discovered through your diligent research efforts. Even researching after a personal interview raises issues. Just what are you looking for? Just trying to find everything possible about the candidate seems legally risky and not good business practice.

  2. Even then, be careful: If possible, have the online research performed by someone other than the person making the hiring decision - ideally, a person who understands what specific information a company can and can't legally consider. In addition, never "friend" an applicant under false pretenses to gain access to private information or try to gain access through a current employee who knows the applicant - you may just be violating a federal law. Also, never ask an applicant to show you his Facebook account during an interview - also legally very risky.

  3. Use specific written criteria for determining information that is relevant - Is it snooping or background checking? Come up with a list of specific things the researcher is looking for (and run it by your attorney). Tailor the list to the requirements of the job. You can also include items such as whether the applicant has discussed confidential information about other employers online, posted about illegal drug use, made threats or committed violence against others, or used racist or sexist language.
Concerning Current Employees (Facebook Firings)
  1. The National Labor Relations Board is watching: Section 7 of the National Labor Relations Act provides that all workers - and not just workers in labor unions - may engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." And, this can include actions by a single employee. The NLRB has weighed in on the issue of employer's attempts to control employee's use of social media (including both e-mail and Facebook-type communications). The bottom line is that communications by employees, especially in the absence of an express company policy prohibiting certain types of communications, are an area where the employer needs to tread extremely carefully. There is a fine and complex line between what is protected communication and what is not.

  2. Invasion of privacy issues: This is a very gray area as of now. A person has a right of privacy, and an employer's viewing of online activity could cross the line. However, to maintain a claim, the employee would have to show that he had a reasonable expectation of privacy. Given the public nature of online activity, that can be a hard case to make. Nevertheless, you best talk to a lawyer before taking disciplinary action or terminating an employee based on online communications by an employee.

  3. Is it worth the trouble/Do you really want to know? In addition to the above, anti-discrimination concerns do not go away once an employee is hired. And, consider that too much information is often worse than insufficient information if the "too much" information is of undeterminable provenance, questionable relevance or enters the region of discrimination. Personally, I believe the current trend to go online to investigate potential and current employees will become less of an issue as this phase of the Internet Age plays itself out. Young people virtually live online. Therefore, just about ever one of these potential or current employees will eventually have incriminating evidence online. For example, if every cell phone is a camera and every photo can be put online, the probability that an embarrassing photo gets online becomes an almost certainty.
And, I did not even address the concept of negligent hiring, the Fair Credit Reporting Act and related Minnesota laws or the Electronic Communications Privacy Act.

If you research your job applicants and/or current employees online, as more and more employers are doing, you need to do it right. And doing it right requires discipline and forethought. Determine the why and what before you decide on the how and when.