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Checking Out Job Applicants On The Internet

Published by on November 23, 2007

Thanksgiving dinner brought out a number of interesting anecdotes about the practice by employers of screening job applicants based on their Facebook or MySpace pages.  Apparently it is now common for hiring managers to review social networking sites of applicants to see whether they “fit” the department’s culture.  One article cites a 2006 CareerBuilder.com survey […]

Thanksgiving dinner brought out a number of interesting anecdotes about the practice by employers of screening job applicants based on their Facebook or MySpace pages.  Apparently it is now common for hiring managers to review social networking sites of applicants to see whether they “fit” the department’s culture.  One article cites a 2006 CareerBuilder.com survey as reporting that 26% of hiring managers ran an internet search on applicants while only 12% checked social networking sites.  Recent stats here may suggest those figures are low.

Checking out job applicants on the internet can have a number of legal implications, depending on how the information is used.  Different lawyers have different opinions about the legality of this practice.  See here, here and here.  As many articles note, it is very difficult to prove a case of discrimination in hiring.  An invasion of privacy claim based on information posted on the internet would also be a long shot.  In some states, however, it is unlawful to discriminate against an employee for lawful away-from-work activities or the use of lawful products while off-duty.  (See, e.g., New York Labor Law § 201-d; California Labor Code § 96(k); ND CC § 14-02.4-03; WI Stat. § 111.321; CO Rev. Stat. § 24-34-102.5).  In these states, greater attention should be paid to the use of social networking sites, blogs, or websites as applicant screening tools.

Hiring discrimination claims are probably a red herring.  The potential risk is that an employee with a different discrimination claim (such as failure to promote or termination) would use evidence of discriminatory practices by the supervisor in hiring (for example, the screening out of applicants by race or sex) to help prove their claim.  Such evidence might be admissible to show bias by the supervisor. 

A similar issue is currently before the U.S. Supreme Court.  The Court will be hearing oral arguments on December 3 in a case involving “me too” evidence (evidence of co-workers who claim they were discriminated against).  Sprint/United Management Co. v. Mendelsohn, No. 06-1221 (U.S. S.Ct.) (Law.com)  Perhaps the Mendelsohn case will indirectly provide employers with some guidance on the implications of unrestricted use of social networking sites in the hiring process.

As an aside, the Virginia Supreme Court recently held that an employee’s use of his computer at work to send emails to his attorney waived the attorney client privilege as to those emails.  Perhaps just another timely reminder that there is very little privacy in the information age.

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