Articles - Compliance and Legal

As reviewed in detail in earlier blogs by Employment Screening Resources (ESR), the use of the Internet to screen and source candidates can get employers and recruiters into hot water. Surveys show that employers have increasingly turned to sites such as Facebook, MySpace, blogs, and other sources to take a peek at candidates “under the hood” before making a hiring decision.

When doing so, an employer may learn all sorts of things that do not bear on whether the person can perform the job, such as the candidate’s membership in a protected class, or legal off-duty conduct not related to the position.

Long ago employers stopped obtaining photographs of job applicants in order to minimize any inference that the physical characteristic of an applicant, such as race, ethnicity, or nationality, played a role in the selection process. For similar reasons, employers have moved away from resumes and towards applications in order to control the flow of applicant information and to ensure that only non-discriminatory and job-related information was provided to the employer.

The reason employers took such steps is to prevent a type of employment lawsuit known as “failure to hire” as a result of a discriminatory hiring practice.

However, in the Internet age, with a few clicks of the mouse such information is easily available, opening up a Pandora’s Box of potential legal exposure. Although litigation based upon failure to hire is not nearly as prevalent as legal actions based upon termination or retaliation, many lawyers expect these types of cases to increase because of the Internet.

As suggested in earlier ESR blogs, the best way for an employer to avoid lawsuits for failure to hire based upon discriminatory practices is by avoiding the temptation to review the applicant online until much later in the hiring process. The most conservative approach would be to wait until the employer both obtains consent and makes a conditional job offer.

The consent helps an employer show there is not a violation of privacy. Contrary to conventional wisdom, the “jury” is still out on the proposition that anything put online is now available to the public. Arguments can be made that a person can put something online and still have a reasonable expectation of privacy. Certainly, any employer that uses an alias, subterfuge, or pretexting has likely crossed the privacy line. However, there can also be an issue involving “terms of use” for a social network site and for the consideration of legal off-duty conduct.

Waiting until a conditional job offer is made gives an employer increased protection from claims of discrimination since the employer is ready to hire but for the final check.

By the time a conditional offer is made, the candidate by this time has gone through an extensive hiring process including interviews. Of course, when the employer does go online, the sort of information that may cause an offer to be withdrawn would have to be job related. A classic example is going online only to find that the candidate said derogatory things about your firm, or the competition, or shared trade secrets, or engaged in some other behavior that would damage the company, hurt business interests, or be inconsistent with business needs or the job.

The employer also faces a risk when the Internet, including social networking sites, is used for recruiting of passive candidates that do not even know they are being reviewed. Unlike candidates that apply at a firm’s website, a passive candidate by definition has not filled out an application, so it’s not possible to obtain consent or wait until a conditional job offer is made.

Since potential candidates may not even know they were passed over for consideration, the question arises of how anyone would even know they were the victim of discrimination.

First, the EEOC has made it clear that discrimination rules apply to recruiting. Per the EEOC, “It is also illegal for an employer to recruit new employees in a way that discriminates against them because of their race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.” http://www.eeoc.gov/laws/practices/index.cfm

In addition, there are few secrets in the world. If a firm is disqualifying potential candidates illegally, a recruiter offended by the practice may reveal something. Or, the practice may be discovered because the workforce is so disproportionately imbalanced in a certain way that it raises an inference that discriminatory hiring practices were used. The EEOC, for example, has been critical of “word of mouth” recruiting since it can result in a workplace selection process that can cause a “disparate impact” against a protected group.

For recruiters, the best practice is to clearly identify the essential functions of the job, to obtain a job description, to have documented training on non-discrimination, and to establish searching protocols and metrics in order to show that objective criteria were used in recruiting.

Of course there are additional issues having to do with the use of the Internet besides privacy and discrimination. These include authenticity and whether or not the information on a social network site is even associated with the applicant or even true.

The bottom-line is that the use of the Internet and social networking sites for recruitng and background checks can be a ticking time bomb for employers. The way to defuse the potential for future lawsuits is to have in place a well-considered Internet use policy and procedures that are implemented and followed to ensure that hiring practices do not invade privacy or produce a discriminatory impact. 

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BIOGRAPHY

Lester S. Rosen is an attorney at law and president of Employment Screening Resources (ESR) , a national background screening firm headquartered in Novato, CA. See; www.ESRcheck.com

He has authored two books on screening and hiring: “The Safe Hiring Manual: The complete guide to keeping criminals, terrorists, and imposters out of your workplace," and “The Safe Hiring Audit: The employer’s guide to implementing a safe hiring program."

He is considered an expert in employment screening background checks, and is a speaker frequently at nationwide human resources, fraud and security conferences. >>>

He has testified as an expert on employment screening background checks in negligent hiring cases in California, Florida and Arkansas.

He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as its first co-chair.

Mr. Rosen graduated UCLA with Phi Beta Kappa honors, and received a J.D. degree from the University of California at Davis School of Law, serving on the school Law Review. While practicing law, he specialized in criminal law and his practice has included federal crimes and death penalty cases. He holds the highest attorney rating of A.V. in Martindale-Hubbell. He has served as an adjunct professor of law teaching criminal law and procedure at Hastings College of the Law, and served as faculty member and program chairman of the Hastings College of Trial Advocacy in San Francisco.

He has also been active in working on legislation in California. In 2002, he worked with the California legislature to amend AB 655, a law that adversely affected employers in the area of reference checks and hiring in California. He continues to be involved in working on California legislation effecting employers.