Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2010

Legal Practice Tips

Digging the Dirt:
Digital Tips for Employers and Job Seekers
By Tamara Russell

“Digital dirt” is as potentially problematic for Oregon employers as it is for the applicants who want jobs from them.

With the advent of search engines, social networking websites, blogs and other online search tools that make finding information on almost anyone a relatively easy task, employers can’t help but be tempted to do a “quick” search on a candidate/applicant to see what “digital dirt” they can find. For example, 76 percent of employers in a recent Society of Human Resource Management survey said they used background checks during their pre-employment screening of job applicants. Meanwhile, 70 percent of U.S. hiring managers say they have rejected candidates based on information they found online, according to a January 2010 report commissioned by Microsoft. That same Microsoft survey revealed that only 15 percent of consumers surveyed believe information found online would affect their ability to get a job.

Unwary employers run the risk of violating state and federal laws when they access information or “digital dirt” about a candidate or applicant on the Internet and base a hiring decision on that “dirt.” Candidates and applicants, meanwhile, need to proactively manage their online reputations and take steps to control the “digital dirt” that can be found on them.

Potential Equal Employment Opportunity Liability
Federal and state law prohibit employers from asking applicants or candidates during job interviews questions about their religion, age, marital status and the like. This is because the laws say, “such inquiries may be important evidence of discriminatory selection, since it is reasonable to assume that all questions on an application form or in a pre-employment interview are asked for some purpose and that hiring decisions are made on the basis of the answers given.” Even questions about an applicant’s medical condition cannot be asked until a conditional job offer has been extended, although employers may ask if the applicant can perform any or all of the essential functions of a job with or without accommodation.

If an employer Googles an applicant’s name or reviews an applicant’s Facebook public profile, the employer could technically be “interviewing” that applicant. An Internet search, for example, could reveal that an applicant is on a cancer survivor’s website, or pictures of the applicant wearing a burqa — both of which place the applicant in protected class categories. If an unsuccessful applicant learns about that Internet search, the applicant might argue that the employer based its decision (either consciously or unconsciously) with a discriminatory bias. The employer’s situation would be further compounded if the employer did Internet searches on only employees with “foreign-sounding” names or for only a handful of applicants (as opposed to an entire applicant pool).

Other Internet-based background checks that implicate federal and state civil rights laws include:

Criminal Background Checks: In the recent case of EEOC v. Freeman, the government alleges that a convention and corporate events marketing company has hiring practices that violate Title VII, because the company made decisions to not hire candidates based on the candidates’ criminal background checks and credit reports. Per the EEOC, this policy had the effect of excluding minorities and males, who have disproportionately higher conviction rates and lower credit scores than the general population. If an employer Googles a candidate and discovers on a newspaper’s website that a candidate has a criminal background, the employer must be mindful of the civil rights laws that may be implicated if the candidate is disqualified from employment for that reason.

GINA regulations: The Genetic Information Nondiscrimination Act, which went into effect in November 2009, amended Title VII to prohibit employment discrimination (including failing to hire someone) on the basis of genetic information. Among other provisions, under GINA, an employer could be liable for “acquiring” genetic information about an employee unless that information was obtained through “commercially and publicly available information,” such as newspapers or magazines. The EEOC’s proposed regulations expanded the definition of “commercially and publicly available information” to include the Internet, among other sources, but the EEOC specifically invited public comment on whether the phrase should also include personal websites or social networking sites. If the EEOC ultimately publishes final regulations that state information an employer obtains from Facebook or related sites about an employee’s genetic background is not “publicly available information,” employers will need to be mindful of running such searches on candidates or applicants.

Other Areas of Potential Liability
Credit check reports: Effective July 1, 2010 an Oregon law makes it unlawful for an employer to use or obtain an individual’s credit history for employment purposes, with limited exceptions such as if the credit history is “substantially job-related” and if the employer provides written notice stating the reasons for the credit check. An employer who conducts Internet searches on a candidate, discovers information about an applicant’s credit history and refuses to hire that person because of the results of that search may violate this new law (as well as civil rights laws, as discussed above).

Smokers: Employers may not want to hire applicants after they find pictures of them smoking cigarettes or cigars on the Internet for any number of reasons. But under Oregon law, refusing to hire someone because he or she lawfully smokes cigarettes may serve as the basis of a discrimination claim, if the employer requires, as a condition of employment, that the “prospective employee refrain from using lawful tobacco products during nonworking hours.”

Bankruptcy and other civil court filings: Bankruptcies and other civil court filings are public record. Federal law, however, prohibits employers from discriminating against an applicant based on that applicant’s bankruptcy history, and Oregon laws give employees protection for initiating or aiding in a variety of civil administrative and court proceedings, including employees who have “in good faith brought a civil proceeding against an employer.”

Unknowingly Conducting a Regulated Search
Stored Communications Act (SCA): This federal law makes it illegal for any person to intentionally access stored communications without authorization. The statute makes an exception “with respect to conduct authorized… by a user of that service.” In Pietrylo v. Hillstone Restaurant Group, the jury returned a verdict in favor of the plaintiff-former employee who alleged that his termination (and the termination of another employee) violated the SCA, among other laws. Plaintiff Pietrylo created a MySpace user group called “Spec-Tator” so that current and former employees could “vent” about their experiences while working at the restaurant. Users were allowed to participate in the user group by invitation only, and access was strictly restricted. After one of the defendant’s managers accessed the site, using an employee’s password, the defendant fired the plaintiff and another employee, because some of the posted comments were racially offensive, sexual in nature, disrespectful towards customers and referred to violence and illegal drug use. The jury apparently agreed that the manager’s access violated the SCA because the employee who gave her password to the manager may not have done so voluntarily. Anytime an employer accesses a restricted website to look into the activities of an applicant or an employee, it must do so with the full and free consent of someone who already has access to that site. Getting that consent in writing is a good idea.

The Fair Credit Reporting Act (FCRA): This law requires employers who use third parties to conduct certain background checks to follow notice and disclosure provisions. Specifically, the FCRA applies to “consumer reports” obtained from third parties. Under FCRA, an employer who uses a “consumer report” to make an “adverse” employment decision (such as a refusal to hire a candidate), must give a copy of the report to the applicant.

One noted loophole in the FCRA is if the employer conducts the background check itself, without using a third-party screening service. Under that circumstance, an employer is not subject to the notice and disclosure requirements of FCRA. Whether an employer implicates FCRA when it does an Internet search on a candidate apparently has not yet been tested in the courts. It seems unlikely, however; Google and Facebook would not likely fall within the statute’s definition of a “consumer reporting agency.”

Will the Real “Jane Doe” Please Stand Up?
Employers are cautioned against running Internet searches on candidates because such a search could be inherently unreliable. For example, a recent Google search of the author’s name revealed that “Tamara Russell” is: In her teens, 20s, 30s, 40s or 60s; Caucasian or African-American; and an attorney, a textile artist, a doctor, a photographer of cats who are “holding” what appear to be bottles of alcohol, or the host of a website devoted to Kobe Bryant of the L.A. Lakers. There are 16 Tamara Russells on LinkedIn (one of whom is the author) and 119 on Facebook (none of whom is the author). Employers who do applicant or candidate searches may not even know if they are looking at the same person who applied for a job.

The law generally leaves it to the employer’s business judgment to determine who should be hired or promoted. Because of that, plaintiffs who file failure-to-hire claims face a difficult burden successfully establishing discrimination under Title VII. Indeed, published cases alleging discriminatory hiring practices based on an employer’s use of the Internet to screen out candidates are not widespread or highly publicized.

That being said, the many potential legal risks associated with Internet searches of candidates and applicants would suggest that employers should refrain from pre-hire searches of candidates. Alternatively, employers could limit their searches to candidates who have been given a conditional offer of employment, or ensure that only select individuals are authorized within the company to do the searches — ideally, someone who is not involved with the decision-making process with respect to that candidate. Finally, an employer may want to follow something similar to the FCRA notice and disclosure provisions if they decide to do Internet searches. For example, inform all candidates when they submit an application that an Internet search may be conducted on them (along with reference checks, confirmation of employment, etc.). Then if the employer does an Internet search on a candidate and finds “dirt,” the employer should give the employee a chance to explain.

Candidates and applicants, meanwhile, need to proactively manage their on-line reputations. First, Google yourself or use other search engines to determine how you appear on the Internet. If you find any website content that is offensive or possibly damaging to your reputation, ask the website administrator to remove it.

Second, adjust privacy settings on social networking sites like Facebook and MySpace so you can control who can access and respond to your content. Also, ensure that your profile picture on the social networking site is appropriate and professional — leave the personal photos on your private wall.

Third, if you like to blog, and you don’t want to adjust the content of such blogs or temporarily remove it while you are searching for a job, consider removing all personal identifiers from the blog so that a deep Web search will not connect you with your blog.

Finally, emphasize your positive skills, work history and strength as a potential employee on websites where you can emphasize your “professional” reputation, such as LinkedIn. Just as employers seek out “dirt” on candidates, employers also want to know about the positive aspects of your work history and career, and the Internet can be just as effective in promoting a candidate’s successes as it is preventing them from securing that ideal job.

Tamara Russell is an attorney with Barran Liebman. She has counseled and represented employers in employment law matters for more than 10 years, and is a frequent speaker and author on employment law topics.

© 2010 Tamara Russell

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