Caution – Using Online Information To Not Hire Someone

Q:  Is there a legal problem if a company looks online, and then uses this information as part of a no-hire decision?

This is one of the hottest topics for many companies right now. Most companies are using the Internet in some form to check out candidates before they hire someone. I would suggest checking with your labor attorney to make sure you aren't violating any federal or state laws. In addition, it is becoming more important that companies protect themselves by having some social media or Internet policy.

Since this is beyond my scope I asked Laura Fleming, a labor attorney and partner with the Newport Beach law firm Stradling Yocca Carlson & Rauth, for her advice.

It is lawful to check publicly available, online information regarding a candidate.  However, there is a caveat.

Employers may not discriminate based on any “protected class” (race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation or veteran status).  An employer's online search will likely uncover much information irrelevant to the job position, including protected class information.  Thus, if a manager does conduct Internet background searches, they must not allow irrelevant, protected class information to influence the hiring decision.

In addition, since some online data is shared only with certain parties (for example, Facebook information which is limited to friends), employers should not use deceptive or intrusive means to view such information, as this could lead to an invasion of privacy claim.

If a manager discovers publicly available information regarding a candidate, they may use such information to reject the candidate, as long as they are not making that decision because of any protected class.  For example, it is lawful to reject candidates because of inappropriate pictures or comments, or even political views that are incompatible with the employer's culture (although this may eliminate an otherwise terrific candidate).  Again, the employer must ensure that such criteria is not intertwined with any protected category.

You can explore our audio library, download free examples of compelling marketing statements, download a summary of our research project that identifies the biggest hiring mistakes, and get our culture assessment tool by clicking the links. All of these are free.

I welcome your thoughts and comments. Please forward this to your contacts on Facebook, LinkedIn, or anyone you think would benefit from this post.

Brad Remillard

bradremillard

About the Author

Brad Remillard is a founding Partner of IMPACT Hiring Solutions, co-author of "You're NOT the Person I Hired", and "This is NOT the Position I Accepted". Brad is an award-winning international speaker, retained executive recruiter, and expert on hiring and retaining top talent, and executive job search.

Comments

  1. It is a very good article, Brad. There is something I would like to add. Such as Internet is a non-regulated community yet, and publishers are protected by the Section 230 of the Communications Decency Act, anyone can publish anything he wants without any caution to be caught and / or prosecuted – anonymously. Zeran v. America Online is a perfect example of such anonymous defamation without any ability to recover losses for the victim.

    The Internet, and especially some specific websites like for example ripoffreport.com, are full of non-proved libelous and defamatory statements, which the owner of ripoffreport.com declines to remove. It means those statement will stay online forever, unless US Government will follow the Sarkozy’s quest to regulate the Internet. Even if it will happen, it is going to take some time.
    It looks that too many people make their living “repairing the reputation”, damaged by anonymous posters today.

    There is a good advice to employers – filter the available information carefully, discuss it with candidates.

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