Unappealing Extracurricular Activities
Some employers (either officially through the HR department or unofficially by individual hiring managers) are also using Web 2.0, as well as Internet search engines such as Google, as a screening and hiring tool. However, such use poses certain legal risks when it reveals information about applicants which may not be relevant to the hiring decision, such as age, race, religion, and national origin, which may expose the company to discrimination claims.
One employer, JobBound.com, viewed the personal site of a job applicant before his interview. The applicant’s self-described interests were listed as “[s]mokin’ with the homies and bustin’ caps with whitey.” What is a human resources generalist to do once they know of an applicant’s extra-curricular activities? JobBound.com declined to offer him a position. Would it be appropriate to cite this web frolic as the reason for declining to hire the applicant? Should such information be communicated back to the applicant or even to a hiring committee? What do you do once Pandora’s Box has been opened?
Lying and Stealing Credit
Consider also the case of a young man interviewing for an engineering position. In his resume, he took authorship credit for some scholarship which was conveniently related to the desired job. He chances for candidacy only improved during his interview where he presented well and seemed quite credible. After a simple search via Google, however, it became apparent to the interviewer that his candidate had lied about his scholarship. Yes, the candidate had committed the big “P” – plagiarism -- taking credit for someone else’s work.
Quite perturbed by this development, the recruiter invited the candidate back for a second-round interview to dig into the details of this person’s so-called original work. When pressed on the intricacies of “his” work, the candidate demonstrated that he lacked the intellectual horsepower he had touted in the beginning of the hiring process. Would this scenario be considered entrapment? Was it fair to invite him for a second interview without knowing the motivation behind the invitation?
Trashing a Current Employer
Employers may also peruse the blogs or Facebook or LinkedIn pages of current employees. Such reviews may reveal content which the employer finds objectionable, as it did for Heather Armstrong. After posting gripes about her employer and unflattering descriptions of supervisors and co-workers on her personal blog, “dooce.com,” Armstrong was terminated from her job (generating the term “dooced” for employees that get fired for information they posted online). Armstrong was careful not to reveal the name of her employer or identify any of her co-workers in her blog, but was still fired because her company maintained a zero-tolerance policy for negativity.
Beware of What You’ll Find
All of the above stories show the perils and possibilities opened up by employers’ use of internet research as hiring technique. Although it offers a wealth of knowledge about candidates or current employees, Web 2.0 can open a veritable Pandora’s Box of personal information which can lay the groundwork for discrimination or retaliation lawsuits. Best practices dictate that one should only base employment decisions upon work-related criteria (e.g., misrepresentations about qualifications for the job, ability to perform the core functions of the job) and gather that information through traditional channels. In the example of the young man who tried to pass off someone else’s work as his own, the recruiter was quite savvy to invite him back and let him hang himself on his own petard rather than make an employment decision on pure conjecture.
If there is concern, however, about what one should do with sensitive information obtained from Web 2.0, call your legal department or outside counsel before making a decision. A brief legal consultation can save you a world of grief later.
Do’s and Don’ts of Hiring Based on Internet Research
1. Don’t rely solely on information you find online. Try to get the candidate to admit to the behavior themselves.
2. Do make your policies for using Web 2.0 clear and available to all job candidates.
3. Don't allow "protected" information about a candidate (e.g., marital status, race, religious affiliation) to taint the decision-making process.
4. Do contact your legal department if you’re unsure about what to do with information you have found about a candidate online.
5. Do base your decision on work-related information, only.
Davis Wright Tremaine LLP
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