The Role of Web Browsing in the Hiring Process
Law always lags behind technological changes. Congress and state legislatures have only begun to consider the impact of the Internet and social media on the workplace. While legislative bodies consider new laws intended to balance legitimate employer needs and employee privacy rights, employers are largely on their own to determine how new technologies can be integrated into their personnel practices. A clear example of this problem arises in the hiring process: is it appropriate to Web browse the names of job applicants?
The Argument Against
Under both federal and state law, employers are prohibited from discriminating against job applicants on the basis of race, religion, ethnicity, color, sex, age and disability. New Hampshire law further prohibits discrimination on the basis of pregnancy, marital status, and sexual orientation. In order to assure that these characteristics are not considered in the hiring process and to avoid discrimination claims, employers have developed policies and procedures intended to limit the types of information gathered from job applicants. For example, application forms have been modified to assure that they do not directly or indirectly seek inappropriate information. Many employers will not accept resumes containing information (marital status, religious affiliation) that the employer does not need or even want to have. Hiring supervisors have (hopefully) received training intended to assure that they do not question applicants regarding personal characteristics that are not job-related.
In contrast, the information regarding job applicants that can be found on the Web is entirely unfiltered. A routine “googling” of an applicant could lead to Facebook pages, personal blogs, and other on-line locations, which are almost always filled with information about an individual’s non-job related personal characteristics. It is easy to conceive of a disappointed job applicant claiming that an employer used information obtained in a Web search as the basis for making a discriminatory hiring decision. It is almost impossible for an employer to prove that the same information played no role in its hiring decision.
A further argument against conducting on-line searches is that the information on the Web may be unreliable. Mistaken identify, misinformation and personal vendettas may paint an entirely misleading and untrustworthy picture of a job applicant. This is particularly true with public employees, who are subject to public scrutiny and are often the targets of harsh criticisms which have no basis in reality.
The Argument For
Public sector employees are public figures. If the employer does not conduct a Web search on job applicants, it is virtually certain that someone in the community will do so after a hiring decision has been announced. There have been numerous situations where citizens have “googled” job applicants and discovered troubling information (e.g., pending civil or criminal lawsuits, undisclosed prior employment, evidence of behaviors incompatible with the new job) that was not uncovered during the hiring process. Usually, the citizen then questions why the public employer it was not aware of the same information. These situations are embarrassing for all concerned and can create some legal difficulties if the employer decides to rescind a job offer or terminate a newly hired employee based on this newly discovered information.
What to Do
It is clear that employers must balance the need to avoid gathering inappropriate and unnecessary information regarding job applicants against the need to avoid hiring an individual whose Web presence makes them undesirable. This balance may be best achieved by treating Web searches the same way an employer treats pre-employment medical examinations. Under the Americans with Disabilities Act, employers may not require a job applicant to submit to a medical examination until the employer has made a conditional offer of employment. The employer may then only deny employment if the employee is deemed medically unable to perform the job, with or without accommodation. Employers are expected to engage in an “interactive process” with the applicant to discuss potential accommodations to the medical issues.
Employers may wish to consider the same approach to conducting Web examinations of job applicants. To avoid exposure to inappropriate Web information, employers should hold off on “googling” job applicants until after making a conditional offer of employment. If the Web search raises concerns, download or print a copy of the troubling Web search result. In order to assure that the applicant is being treated fairly, give him or her opportunity to see the material and respond to the employer’s concerns. Through this interactive process, an employer can limit the risk of discrimination claims, ensure that job applicants are treated fairly, and procure the best candidate for the job.
Mark Broth is a member of the DrummondWoodsum’s Labor and Employment Group and his practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship.
This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2014 Drummond Woodsum. These materials may not be reproduced without prior written permission.”