3220 M Street Sacramento, CA 95816 Telephone:  (916) 492-6555 Facsimile:    (916) 492-6556 www.theisonlawgroup.com ©2007 The Ison Law Group

Internet Background

In a 2006 poll of 297 human resource managers conducted by the Society for Human Resources Management, 6% say that they use Internet search engines, such as Google and Yahoo to conduct background checks on job candidates. Another 3% use these search engines as a pre-screening tool prior to interviewing candidates. Given the pressures on employers to produce more with fewer and fewer resources, along with growing applicant pools for certain positions, we predict an increased reliance on the information produced by these web searches in hiring decisions.

While “Googling” a potential employee may seem harmless, employers may want to give some thought to the possible legal and practical implications of digging up Internet dirt on job applicants before they login and search.

Legal Issues

There are no federal or California laws that prohibit an employer from using an Internet search engine to gather information about job applicants. However, just because there are no laws that prohibit or limit the practice, there certainly are legal issues relating to how one uses gathered information. For instance, Title VII of the federal Civil Rights Act of 1964, or “Title VII,” prohibits discrimination against an employee on the basis of gender, race, color, religion or national origin. Similarly, California’s Fair Employment and Housing Act, or “FEHA,” grants the same protections to employees and goes further, also prohibiting employers from discriminating on the basis ancestry, physical disability, mental disability, medical condition, marital status, age, gender identity and sexual orientation. The employees and job applicants who fall into one of these protected categories are called members of a “protected class.”

Now you may be wondering how using an Internet search engine to gather information about a job applicant could violate Title VII or FEHA. While searching in and of itself is not a violation, if you happen to discover that the individual you looked up is a member of a protected class that is where you may run into problems.

For instance, assume you are a California employer and your Google search of a job applicant leads you to discover that she is an African-American woman who has a physical disability. This is information that would not have been listed on her application alone. Now, if you choose not to hire the applicant - - even for a truly legitimate reason - - you may be open to claims under Title VII and FEHA for employment discrimination. Even if you had a non-discriminatory reason for not hiring the applicant (the fact that she engaged in misconduct in previous employment or was unqualified, for example), the applicant will now argue that an inference can be made that your decision was based on the applicant’s membership in a protected class. Of course the applicant may have some evidentiary problems in winning on such claims, but, as employers are well aware, just having a discrimination claim filed against you can cause major damage.

Practical Implications: The Good, The Bad and The Ugly

As we mentioned above, if you choose to utilize an Internet search engine to conduct a background check on a potential employee, consider what kind of information you will obtain - -other than the potentially harmful “protected class” information discussed above. To get a little perspective, try “Googling” yourself and see what comes up. When we tried this exercise out for one of our staff members (with her consent), we discovered that she had recently participated in a 10k race for charity, that she made a $25 donation to her alma mater, that her grandmother passed away in 2005, and that she interned at a number of non-profits while in school. Also, we found a link to her “MySpace” account, which, in addition to providing us with several photographs, told us her race, religion, marital status, sexual orientation, and political affiliation, just for starters.

As with our little test, employers may find out that the applicants for a job are well-rounded, stable people. Of course, some of information that we uncovered about our employee could potentially put us in a difficult situation, should we choose to demote or terminate her in the future because we now know a lot more about her protected characteristics.

In other cases, an employer may come into information about potential employees that could be extremely valuable in the hiring process. Such information may include past employment that the applicant failed to mention, perhaps indicative of a termination. An employer may stumble across some photographs of a potential employee out partying with friends or read about their activities on the applicant’s social networking page. This could provide insight into how reliable the individual might be as an employee. If the job applicant has a blog, this could also provide an employer with almost instant access into his or her inner thoughts and workings – from rants about past employment situations to the nitty-gritty about relationships and other personal information that you did not want to know. It is surprising how much some people will reveal to the world via the Internet, so employers should be prepared for what they could find.

Recommendations to Employers

Should you Google a prospective employee or not? It almost seems too easy not too, so chances are you will. Given this likelihood, consider the following advice as you review the information you discover about job candidates.

• Take everything you find online with a grain of salt – consider what might turn up if you search your own name and ask whether it really reflects who you are as a person and as an employee.
• Make sure that the information you found is actually about the person you are looking for – some people have common names!
• Make hiring decisions on job related information and document your hiring decisions well, especially in cases where your search may have turned up information that puts you on notice that the applicant is a member of a protected class. On many social networking sites, members are able to track who has viewed their page so the applicant will know if you checked him or her out.
• Do not abandon solid hiring practices such as reviewing academic records, talking with former employers, interviewing, and running other background checks.
• If you find something that makes you think twice about hiring an otherwise qualified applicant, consider raising the issue with him or her and finding out if there is some kind of reasonable explanation for the troubling discovery.