Is it now negligence if you don't do background checks on MySpaceTM and Facebook? "We're not there yet for every job," says attorney Joseph Beachboard, "but it's getting there for sensitive jobs like installers and home care providers."

Beachboard's comments came at the recent Society for Human Resource Management (SHRM) Annual Convention and Exposition in New Orleans. He is a shareholder at the Los Angeles office of Ogletree Deakins.

Where Are Companies Looking?

Beachboard finds his clients looking at the following types of websites:

Search engines:

  • Google
  • Yahoo!®

Social networking sites:

  • Facebook
  • MySpace
  • Twitter
  • Classmates®
  • Virtual worlds (sites where users create their own characters)

Rant sites

  • Fthisjob
  • Jobvent

hat Are the Issues with Internet Searches?

Beachboard offered several lawsuits as examples of the types of situations employers are facing.

A Delta Airlines flight attendant posted provocative pictures of herself in her uniform on company planes on her personal website.

The Arlington, Oregon, mayor posed for photos wearing lingerie and sitting on town fire trucks. The photos were discovered on the mayor's MySpace page.

Can you stop workers from blogging about your company? Negative blogs and websites are a serious problem, but controlling them is tricky at best. Find out how to manage this threat at BLR's August 19 audio conference, Employee Blogs and Websites: Protect Yourself Against the Business and Legal Risks When Workers Go Online.

"Cisco fatty" tweeted that "Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work." Cisco rescinded the offer. (Cisco Fatty was getting an information management degree, Beachboard points out.)

A librarian with the same name as the "Wii Fit Girl" (YouTube's 3-million hit "Why Every Guy Should Buy His Girlfriend a Wii Fit") had trouble getting a job because people thought she was the Wii Fit Girl.

Underlying these situations is an essential conflict between employee and employer expectations, Beachboard says.

  • Employees expect that their "private" information won't be used.
  • Employers are searching for the best information to make decisions.

What's the Potential Liability?

Although there are no federal laws prohibiting online searches for information about applicants and employees, there are some laws that come into play:

FCRA, the Fair Credit Reporting Act, requires certain notifications and procedures for credit reports conducted by third parties. If you engage a third party to conduct the searches, you must comply with FCRA.

NLRA (National Labor Relations Act) may also come into play if unions are involved. Websites and blogs about terms and conditions of employment may be "concerted activity."

Discrimination statutes protect against discrimination on the basis of race, age, gender, etc. You are likely to get information about those factors during a search. Once you have the information, you are open to a claim that you acted based on that knowledge.

The Stored Communications Act (SCA) may also cover certain actions related to obtaining information.

State Laws Also Apply

Many states offer broader protections. And most states have common law privacy rights called "intrusion upon seclusion" and "publication of private facts."

The Question of Balance

The question is this: Does the employer's need for information outweigh the employee's right to privacy?

The employer's strategy is to show that need is high, while at the same time making the reasonable expectation of privacy low.

Negative blogging bringing you down? What can you do about employees who complain, demean, and demonize your company online? Find out at BLR's August 19 audio conference, Employee Blogs and Websites: Protect Yourself Against the Business and Legal Risks When Workers Go Online.

Pros and Cons

Beachboard identifies the following pros and cons of doing Internet searches in the employment context.

Pros for doing the search

  • It's a critical decision.
  • You may gain invaluable information about character.
  • It's far easier to avoid a bad hire than to get rid of a bad hire.
  • “Failure to hire” suits are much less likely than suits over termination.
  • It may help to avoid a negligent hiring claim.

Cons for doing the search

  • Sites are rife with information impermissible to consider.
  • Possession of information may taint an otherwise well-based decision.
  • There is the possibility of making a decision based on incorrect information (like Wii Fit girl).
  • You'll increase the likelihood of litigation.
  • You may generate bad publicity.

In tomorrow's Advisor, we'll see Beachboard's eight keys for searching the Internet, and we'll introduce a new audio conference on blogging and employee websites.

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