Risk/Reward: Should Employers Rely on the Internet When Making Hiring Decisions?

By now, we all live with the understanding that the Internet will allow potential employers to learn something about us. Whether it is information on Facebook, LinkedIn, Twitter, or MySpace, most of us have left cyber footprints through which people around us form impressions of who we are. Often, this information is personal. Many times, the information concerns social behavior. And, some of this information is misleading.

High schools tell their students to be wary of Facebook because of the possibility that college admissions officers will use the Internet to learn about applicants. They worry about the pictures students post of parties, or flirtatious photos that create the possibility of misunderstanding. These warnings, which are only sometimes heeded, make sense. Anyone charged with evaluating the suitability of a candidate ignores the Internet at his or her peril.

It's true for employers too. Many employers now include a careful "Google"-initiated inquiry in hiring due diligence. Although there are risks in such an inquiry -- a prospective employer may inadvertently learn information about an applicant that could support a discrimination claim -- the potential benefits of such a search are greater. An employer may learn about behavioral tendencies or patterns that counsel against a particular hiring. That possibility tilts the balance in favor of the search.

Consider this a caution. Decisions based on information discovered on-line often reflect the prejudice of the employer rather than any genuine substantive issue with the potential employee's capability. Modern mores seem to include a willingness to share images of events that were previously private. Many decision makers, however, come from a place that views such openness as alien. So, a potential employer encountering a Facebook page may assume that pictures of social behavior are the tip of the iceberg, rather than simply images of social behavior that has nothing whatsoever to do with work performance. If the goal is to measure potential commitment to work -- these images may genuinely be meaningless. Learning this landscape is an ongoing challenge for businesses of all kinds.

In addition, a curious potential employer can find its way into trouble. A job applicant who shares her sexual orientation on-line may claim to have been denied a job for that reason (rather than because of other on-line information that suggests irresponsibility). A job applicant who has used Facebook to describe his discrimination lawsuit against a prior employer may claim to have been denied a job for retaliatory reasons. And an employee who posts negative commentary about her current employer and loses her job as a consequence may claim that the employer has committed an unfair labor practice. The law will take all of these claims seriously, and the NLRB is particularly keen to protect an employee's ability to communicate on-line about workplace conditions. All of which is to say that there is real risk in making decisions based on Internet research.

So -- what is an employer to do? A combination of thorough and consistent searching and careful decision making makes the most sense. Using either internal checks or outside counsel, potential employers must vet any decision based on information found on the Internet. Internally, potential employers must adopt consistent standards of disqualification to avoid claims of discrimination. There's a lot to know, and much of it is worth knowing. Figuring out how to deal with what you learn is part business judgment and part legal know-how. Getting the combination right can lead to better and more productive workforces.

Related topics: Employment, Retail