Using Internet for Background Check, Quirky Question # 72

Quirky Question # 72:

I am the HR Manager for a Minnesota-based defense contractor.  A few weeks ago, I received a general e-mail inquiry regarding employment opportunities with our company, along with an attached resume, from a person I will call Joe Hunter.  Normally, I would simply delete such an e-mail, as my company does not accept or respond to employment inquiries made outside of our job posting system.  However, 25 years ago I graduated high school with someone named Joe Hunter and I was curious whether this might be the same person.

I also happened to have a couple of open positions at the moment, so I figured there was a business reason, beyond just my personal curiosity, to open the attached resume.  Unfortunately, the resume did not list high school, but it did suggest that Mr. Hunter might actually be qualified for one of our job openings.  I was still curious, though, whether this was my former high school classmate.  So, I decided to run “Joe Hunter” through a popular Internet search engine.

The search results lead me to a personal page on a popular social networking site for Joe Hunter, including personal data, pictures, and extensive blog entries.  I discovered that Joe Hunter was a younger-looking, African-American man, not the same Joe Hunter I knew in high school.  I also noticed that one of Mr. Hunter’s blog entries described how he was detained by police following a recent anti-war protest.

Since this was not the Joe Hunter I knew from high school and since our company policy does not accept unsolicited resumes anyway, I simply deleted the e-mail I had received from Joe Hunter.  It also occurred to me that we run background checks on all candidates after they receive a contingent offer of employment as part of our normal hiring process.  It is unlikely that Mr. Hunter would be able to pass such a check given his arrest record, and, in any event, I questioned why someone who participates in anti-war protests would be interested in a position with our company.

I know from various surveys I’ve seen that as many as 25-50 percent of companies use the Internet as a source of information in the hiring process.  But I recently attended a conference on the Fair Credit Reporting Act and am concerned that I should have gotten some sort of release from Mr. Hunter before I reviewed information about him from an external source.  What are your thoughts?

Dorsey’s Analysis:

The good news is that you have not implicated the employment background checking provisions of the federal Fair Credit Reporting Act by conducting your own Internet search.The bad news is that you have implicated a number of other practical and legal issues by deviating from your normal procedure for handling employment inquiries.Many of these, in and of themselves, do not automatically create legal liability, but they do highlight a set of facts that could be difficult to explain if this candidate felt he was unlawfully passed over for employment and sought to take further action.

One perhaps less obvious issue has to do with your company’s federal contractor status. While typically you would be entitled to disregard an unsolicited e-mail inquiry that goes outside of your normal job posting process, if you undertake any qualitative assessment of the unsolicited candidate, you most likely have converted Mr. Hunter into an applicant for employment under the OFCCP’s traditional definition of an applicant or more recent definition of an “Internet applicant.” If so, you must record this individual in your applicant flow data and include him in any statistical analysis you might be required to do in support of an affirmative action program.

Several other issues relate to the inherent unreliability of information, with the possible exception of public records, accessible via the Internet. While it is true that (depending on the survey) as many as 60 percent of companies utilize Internet searching at some point in the hiring process and with respect to at least some positions, your situation demonstrates precisely why such information must be viewed with caution, particularly as it relates to social networking sites, personal blogs, and the like. First of all, there is no way to verify whether the “Joe Hunter” whose blog you stumbled upon happens to be the same “Joe Hunter” who e-mailed you the employment inquiry, or, if he is, whether any of the information he reported about himself is true. In short, while running an Internet search may yield some possible additional information about a candidate for employment, I would only engage in such a search pursuant to an established policy that applies equally to all candidates who reach a certain stage of the hiring process and/or with respect to certain positions. Moreover, you are much better off spending your time contacting employment references and, when the time is right and according to your established process, conducting formal background checks. Internet searches should never be a substitute for these procedures.

As suggested above, the most significant legal concern I would have about your situation, is that by deviating from your established procedure, you have, almost by definition, engaged in differential treatment with respect to this applicant for employment. And to further complicate matters, you have discovered (or at least think you have discovered) attributes about this individual that you typically would not have in your possession at this stage of your process with respect to other candidates. For example, you believe that Hunter is “younger” (which could be a protected class under Minn. Stat. § 181.81) and African-American (which is a protected class under Title VII and virtually every state’s human rights statute). While it is not per se unlawful to possess or (with the exception of pre-employment medical inquiries) even ask for such information in your hiring process, you run the risk of later having to demonstrate that such information did not factor into your decision-making process (i.e., proving the negative), or that, even if it did, the individual still was not the most qualified applicant (potentially leading to a mixed-motives analysis).

Your question suggests that at least some of the additional information you discovered did, in fact, influence your decision to pass over this individual as a candidate for employment – most notably, your suspicion that Hunter has an arrest record. Even if true, the EEOC and most courts view consideration of arrest records as leading to disparate impact in the hiring process, due to the disproportionately higher rates at which certain racial or ethnic groups are arrested. Conviction records are viewed less skeptically (although the EEOC continues to maintain that the conviction must be recent, serious, and job related for it to be a valid criteria in the hiring process), and while certain conviction records are available through public records sites, many of these sites ask you to agree to certain limitations on use that you should review carefully before running any queries.

Separate from the arrest record issue, if you were able to confirm through your normal interviewing and hiring process that Hunter was an outspoken anti-war protestor, you could consider that factor when evaluating whether he was the most-qualified candidate for a position with your company. As a private employer, you are not precluded from factoring in Mr. Hunter’s self-avowed public policy views under some sort of “free speech” argument. Nor is there any argument that information posted by Hunter on a personal blog is protected by any right to privacy. In fact, even if Hunter only expected the blog to be viewed by family and friends, the information could not be any more public than by posting it on a site accessible through a general Internet search engine. Accordingly, should you have questions about information you discovered via a legitimately conducted Internet search, you should feel free to present such information to the candidate, even if just to confirm whether the person referenced is the same.

In sum, decide first whether an Internet search would be a useful addition to your company’s hiring process. If you conclude that it would be a valuable addition to your hiring process, develop a policy to insure that such searches are run for all candidates at a specified point in the hiring process and/or for certain positions. This would suggest reserving Internet searching for a later stage of the hiring process, after you have winnowed down the candidates through traditional criteria. Your policy should include a standard set of searches to be run for each candidate and a requirement to document the results of such searches. Finally, you should approach such results with a healthy dose of skepticism, at the very least giving candidates a chance to respond to Internet search results if they are likely to influence the hiring decision. Do not use Internet search results as a substitute for verifying employment references and running a formal background check. Employers have been found liable for a “bad hire” when they failed to check references or run a traditional background check. No employer has (yet) been found liable for failing to run an Internet search prior to hiring.

Dorsey & Whitney

Dorsey & Whitney

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