Digital Dirt – Traps for the Unwary Employer

In an earlier post, I shared the best of Ethical Traps in Cyberspace, a Presidential Showcase CLE at the 2010 ABA Annual Meeting.  Among the tips – how to avoid running afoul of state and federal laws when using the Internet to research candidates or employees.  The Presidential Showcase CLE provided a good overview of the topic, but I was delighted to see Tamara Russell of Barran Liebman tackles this subject in depth in the August/September issue of the Oregon State Bar Bulletin.  Here are some excerpts from her excellent article:

Potential Equal Employment Opportunity Liability

“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 Web site, 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.”

Genetic Information Nondiscrimination Act (GINA)

Currently, employers are liable for acquiring genetic information about an employee unless the information is commercially and publicly available.  (The Internet fits within this definition.)  However, final regulations have yet to be adopted, and it is possible the EEOC will exclude personal Web sites or social networking sites if password protected.

Criminal Background Checks

“If an employer Googles a candidate and discovers on a newspaper’s Web site 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.”  (See Ms. Russell’s discussion of the recent case, EEOC v. Freeman, in the original article.)

Credit Check Reports

Effective July 1, 2010, Oregon law prohibits employers from using or obtaining a job candidate’s credit history for employment purposes.  Limited exceptions apply.  “An employer who conducts Internet searches on a candidate, discovers information about an applicant’s credit history, and refuses to hire that personal because of the results of that search may violate this new law.”  (And other civil rights laws discussed in the article.)

Bankruptcy and Civil Court Filings

Federal law prohibits employers from discriminating against an applicant based on the applicant’s bankruptcy history.  Oregon laws provide additional protections for certain civil and administrative filings.

Stored Communications Act

Federal law “makes it illegal for any person to intentionally access stored communications without authorization.”  The only exception?  If the user authorizes access.  “Any time an employer accesses a restricted Web site 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.”

Fair Credit Reporting Act

Employers who use third-party services to run background checks must follow FCRA notice and disclosure requirements.  “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 Beverly Michaelis Please Stand Up

As Ms. Russell points out, the final trap to using the Internet as a screening device may be the search itself.  Unless a searcher is precise and careful, it is easy to bring up multiple instances of a candidate’s name.  For example, I like to think of my name as relatively unique, however there is a public profile for a “Beverly Michaelis” on Facebook (not me) and I have received at least two Google Alerts informing me that “Beverly Michaelis” died.  (I’m happy to report this Beverly Michaelis is alive and well.)

Ms. Russell concludes with some final words of wisdom – both to employers and prospective candidates.  Her article is well worth reading.  For tips on hiring (and screening) potential job candidates, see Know Who You Hire.

Know Who You Hire

The best predictor of future behavior is past behavior.

Love him or hate him, this quote from Dr. Phil says it all when it comes to hiring legal support staff.

Before joining the Professional Liability Fund in 1996, I operated the Multnomah Bar Association’s Legal Placement Service.  During my tenure, I interviewed and screened thousands of potential applicants.  We did not place lawyers, but we filled every other available position in a law office or legal setting. 

My experience at the MBA taught me many things, not the least of which was the importance of checking references. 

Applicants can be very charming, professional, and appear to have spot-on experience.  In fact, they may truly possess all these qualities.  But none of this really predicts how well they will do on-the-job.  The only way to find out is to check references. 

By contacting former employers you may learn that your charming applicant is an embezzler, exaggerated his experience, or threw a plant at her former boss.  (I did.)

This is not to say that there is an abundance of poor candidates – far from it.  The point is:  you need to know who you are hiring. 

With the caveat that I am not an employment or labor law specialist, here are some questions you might ask of a reference:

  • What position did this employee hold at your firm?
  • When did the employee work for you?
  • Can you describe the employee’s responsibilities?
  • Why did the employee leave your firm?
  • Was the employee dependable and reliable?  Did he/she have any issues with absenteeism or tardiness?
  • Did any personal problems affect this employee’s work performance?
  • Did the employee communicate well orally and in writing?
  • How would you describe the employee’s clerical/secretarial skills?  Did he/she turnaround work quickly?  Was the employee’s work product accurate?
  • Did the employee take instruction well?  Did he/she seem to grasp new responsibilities quickly?
  • Did he/she get along well with others in the firm?
  • Did the employee have contact with clients?  If so, did he/she ever encounter angry or upset clients?  How did he/she respond?
  • How did the employee handle pressure?  Stress?
  • Did the employee make sound and timely decisions?
  • Was this employee a self-starter?
  • What do you think is this employee’s strongest quality?
  • Is there an area this employee could improve upon?
  • Do you think this employee will perform well as a [job title]?
  • How would you describe the employee’s overall performance?
  • Would you re-hire the employee?
  • Is there anything of significance you’d like to add?

Don’t underestimate the importance of being systematic in your approach to hiring.  Develop a set of questions to ask references and applicants, then create and use forms or checklists to ensure that your hiring process is thorough and consistent.  You won’t be sorry!

Copyright 2010 Beverly Michaelis