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Careful what you look at: 4 legal pitfalls of Googling candidates

by August 10, 2009 15 Comments

Online Recruiting

Many employees run quick background checks on candidates by searching for their blogs and social networking profiles. It’s a strategy that can help the hiring process — if it’s done the right way to avoid legal troubles.

Here are the top four ways Googling applicants can lead to legal trouble, according to attorney Joseph Beachboard, speaking at the recent Society for Human Resources Management Annual Conference in New Orleans:

  1. Caregiver or disability bias – Hiring managers may find information on social networking sites that they would never ask about in an interview — for example, pictures of a female candidate with her young children, or details about the applicant’s struggle with a disability. Even though managers may not think about discriminating against working mothers or people with disabilities, if they know that information and turn the person down, the applicant could have ammo for a lawsuit.
  2. Privacy violations – A lot of what applicants put online is public. But not everything, and accessing things that are deemed private could get managers in trouble. In one recent case, a group of employees were members of a private, password-protected group on MySpace where they often complained about work. A manager wrangled the password out of a worker, went to the site and fired the creators of the group for “unprofessionalism.” The employees sued, claiming the company had no right to see their private site. A jury agreed and awarded the employees $17,000 in back pay and damages.
  3. Legal, after hours activities – Several states prohibit employees from denying a job to someone based on their legal, non-work activities. That may include things like chugging booze — though if you can show a connection between the behavior and an inability to do the job, you’re usually OK. But other activities might show up — for example, political protests or union activities — that are more clearly off limits for hiring decisions.
  4. Fair Credit Reporting Act – If you use a third party service to conduct certain types of background checks, the federal Fair Credit Reporting Act (FCRA) requires that you give the applicant prior notice. In some states, such as California, you have to give notification even if you’re doing the check yourself. Does that including checking out someone’s Facebook profile?. Experts don’t know for sure, and probably won’t until a test case is brought to court.

If your managers do Google applicants, what’s the best way to proceed? The biggest key, Beachboard says, is focusing on job-related information only. Give managers a list of what they might look for and tell them to only record information that can legally be used in the hiring process.

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  • Phil

    How is it different to see a person’s family status on facebook as compared to seeing the candidate and kids (or elderly parent, spouse with disabilities, etc.) shopping at Wal Mart. The fact is, we sometimes find out such non-work related personal information just by chance. The important thing is that we ALWAYS select the best candidate based on job qualifications and disregard the other stuff we find out. It’s a simple concept and it requires some discipline, but we’re professionals – it’s our job.

  • Robyn

    Running into a candidate at Wal-Mart is very different than seeing their family status on Facebook. Seeing their family status and pictures on Facebook requires an intended search for that person while running into them at Wal-Mart would be a coincidence unless you are stalking the candidate. Personally, I would stay away from looking at potential or current employee pages on social network sites except for maybe Linked In. You can get plenty of information from doing interviews the good old-fashion way and select the best candidate for the job based on qualifications.

  • http://www.hrmorning.com JLM

    Phil,

    I agree 100%. No other way to look at it.

  • Ann

    I don’t see much in the way of job qualifications on the Facebook websites I’ve seen, but I’m a relative newcomer to it. Has anyone ever really seen anything on Facebook that helped them make an unbiased decision. Believe me, I’m not holier than thou; I have to admit to a curiosity and have even looked myself. In the end, I truly believe that the key to being unbiased is not to have the information in the first place. If you see them at Walmart ,that is happenstance. If you make it happen, that is something else.

  • John

    Ann & Robyn thumbs up on your knowledge and professionalism. Phil could use a refresher course from his local community college.

  • Phil

    John, I didn’t say I WOULD google candidates at random (besides, who has the time?), just that we often get non-job related information by chance and that it’s up to us not to include it in our decision making process. It is best to avoid getting such information, because then you don’t have to filter it out.

    There are times that it might be valid to search the internet for candidate information, for example: If I’m hiring a training specialist and their resume lists an article that they authored on training; I might try to find the article. I would have to be careful about other stuff I stumble onto.

    Like I said in my original post, a true professional ALWAYS makes employment related decisions based on qualifications. Your prescription for a refresher is out of line.

    -Phil Coulter, SPHR

  • http://hrmorning.com JLM

    I think I misread some comments.

    Seeking out someone’s personal information i.e. on facebook or myspace is completely different from a happenstance.

    However, I do agree, that unless it’s an extreme case HR/Recruiting professionals should pick the best candidate based on qualifications.

  • Tony

    Phil-

    Come on, a true HR professional would know that it is impossible to ALWAYS make hiring decisions based solely on qualifications – nor is it advisable to make that a hard and fast rule. If we only looked for qualifications we’d never do a background check on a candidate, look for organizational fit, etc. I’ve lost count of the times a candidate had the best “qualifications” for the job but wasn’t the best candidate because of organizational fit and other perfectly legal and appropriate factors.

    Also, please don’t think that by having “SPHR” after your name it makes you an HR expert. I’m an SPHR, I’ve been teaching the certification review classes twice a year for five years, and after the first couple of modules I can recognize the participants that really understand the body of knowledge…and those who will pass because they are good test takers.

  • Stacy

    Hypothetical Example: the hiring manager is a devoutly religious person and they find a candidate they really like and are ready to extend the offer to. That day, post interview, Hiring Manager goes online and searches the candidate’s Myspace page only to find out that the candidate is Atheist/Agnostic, Gay or sells adult entertainment items on the weekends, and advertises it on their Myspace page. I am 100,000% sure that any and everything they originally liked about this perfectly qualified candidate will no longer be considered and that person will not get hired. In the meantime, this candidate will be clueless as to why this happened because that hiring manager wouldn’t dare tell them they were spying on them but will make up some other legitimate sounding excuse such as, we found someone else more qualified. My personal opinion: Going online behind any person’s back to form an opinion about them is a dishonest, judgmental, cowardly, sneaky thing to do. Any Hiring Manager that uses any online tool without the consent or awareness of the candidate really wants to pass PERSONAL judgment and not use their PROFESSIONAL judgment. Hiring Managers expect their candidates to be honest with them, so how can they do that if they aren’t honest themselves. If people were smart, they’d set their Myspace pages to Private and not accept friend requests from people they don’t know or people who don’t have a picture with their friendquests. On Facebook, you can’t see the profile without sending a friendquest which has to be approved. Don’t accept Facebook friendquests from people you don’t know, especially if you are looking for a job, it could be that spy. And lastly, don’t use Twitter to complain about work, that is so awesomely stupid and could get you in trouble.

  • Tony

    Stacy-
    Never said I was a proponent of using any of the social media to check out candidates…but spying? If a candidate “advertises” anything then by definition they want it to be seen. Could your “hypothetical situation” happen? Sure. Does it happen as often as you’d like people to think? I seriously doubt it. The fact is that most employers look for two things from candidates; can they do the job that needs to be done and will they fit with the rest of the department/branch/organization.

    Let’s reverse your scenario and say you’re a manager who is gay and atheist. You’e on Myspace and look up the candidate you’re planning to make an offer to on Monday. You find the candidate is married with five children and a devout Southern Baptist. You see pictures of the kids, quotes from the Bible, and statements that strongly call for everyone to spread the Gospel, condemn sex before marriage, abortion, homosexuality, and gay marriage. Your staff is made up of a mix of married and single individuals many in committed relationships and living together. You are also in a committed relationship and live together. You and the rest of the staff often discuss weekend activities, vacations, plans for the future, all perfectly normal and appropriate workplace discussions that offer glimpses into your personal lives. In addition you have a department picnic in a month where everyone brings spouses, significant others, etc.

    Tell us all what you’re going to do on Monday…

  • Stacy

    TONY: I wasn’t directing my post to you at all because I hadn’t read your post until after this one. This is just my personal opinion about hiring managers that may use these personal online web pages as a tool of judgment, it is sneaky and deceptive. My Hypothetical Scenario was just that and nothing more. You have a point, the situation could be reversed and in any scenario I just don’t think it’s right. If Hiring Managers don’t intend to use these to point the finger of judgment, what the heck are they on they looking at them for? I say, if Hiring Managers like the person, they are a qualified all around great fit for the company and the consentual background check (if any) was good, what else is there to know? If you can’t ask the questions in the interview about the personal things you are going to probably find out about them on Myspace or whatever, then stay off the page. What a person does and thinks on their own personal time, as long as it does not affect their job performance or reputation of the company is no ones business. Period!

  • Tony

    Stacy-
    My post was in the spirit of a good debate of the issue at hand. I didn’t feel attacked and honestly appreciate your personal opinion. You also help make my point…if the manager “likes” the person and they’re an “all around great fit” is exactly what I’m talking about here. If the hiring decision is “ALWAYS” made on the qualifications, as Phil and some others say it should be, then fit wouldn’t ever enter into the decision. We wouldn’t ask for or provide references (don’t get me started on that one!), conduct background checks, or need to do face-to-face interviews…we could let a computer compare the job requirements with the resumes and determine the most qualified candidate. And what if it is something that would possibly tarnish the reputation of the company…who get’s to make that decision or prediction? Is the company forced to take that chance no matter how likely it is? I’ve had to do too many exit interviews with employees hired because the manager was told by HR that the ONLY thing that they were allowed to consider was the person’s “qualifications” and nothing else.

    Yes, there are bad hiring managers, and some pretty darn good ones too. The one’s I’ve trained know where the boundaries are and can use behavior-based interviewing as a tool to learn about the candidates. I’ve also trained them to make the interview a two-way process so the candidate can make an informed decision as well. None of us are perfect in every interview but we do our best to make well-informed and legal decisions. We want the best candidate for the job so they are more likely to succeed, will feel good about their job and develop good working relationships – in return we can get the work done well and feel good about our employees.

    BTW, I don’t advocate any of our hiring managers check social networking sites for candidate info, but I know it happens from time to time. And, if faced with info that is a serious deal breaker, I can’t say I wouldn’t take it into consideration…I personally know of one situation where it was life and death and it unfortunately cost 4 people their lives.

    Thanks again for sharing your ideas and perspectives!

  • Stacy

    Thanks Tony! I never want anyone to think I am attacking them and it is about the Spirit of a good debate. You make some very valid points, I think we all do. This is just one more thing to make it that much harder for Hiring Managers. I am 100,000% sure a lot of managers look at social networking websites to find out “other” information on candidates and presently employed individuals. They are open to the public so that’s probably the chance all the participants in these online web pages take.

  • Erica

    I think this illustrates why it can be so valuable to do a background check with a third party vendor. You get consistent, selective information. Also, you remove yourself legally from the equation – as much as possible. A professional background check can be appealed by the candidate, which is dealt with by the vendor.

    It’s worth the money if you can afford it because there are some great “salespeople” out there who know how to get hired, but make terrible employees.

    By the way, I have seen resumes inviting me to visit their myspace page, and for the most part I did not like what I saw… maybe they were trying to stay on unemployment…

  • Stacy

    ERICA: So true! That’s what everyone should stick to because that is the information we need most to be concerned about. Not too long ago we experienced a Sales Person that was recommended by one of our vendors, looked excellent on paper and aced both interviews and he only lasted a couple of months and it was not good.