Surveys and informal data suggest that employers are increasingly using the web and social media sites to both identify and recruit desirable job candidates, as well as to weed out less desirable candidates. Just as there are legal limitations to screening applicants through more traditional methods, legal issues are likely to arise when applicants are screened online. The following section summarizes some of the special applicant screening laws that may be triggered by online screening of job applicants.

Negligent Hiring

In Minnesota, an employer can be liable for negligent hiring if it “plac[es] a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of employment, it should have been foreseeable that the hired individual posed a threat of injury to others.” Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 911 (Minn. 1983). Employers have a “duty to exercise reasonable care in view of all the circumstances in hiring individuals who, because of the employment, may pose a threat of injury to members of the public.” Ponticas, 331 N.W.2d at 911. This has come to be known as a sliding scale duty, requiring the employer to decide how much investigation is necessary based on the nature of the position. Because of this potential liability, it is sometimes appropriate for an employer, depending on their business and a particular position’s duties, to do a more thorough screening of an applicant’s background to try to ensure that the individual does not pose a safety risk or other risks to the business
or third parties.

Historically, the doctrine of negligent hiring has resulted in employers considering whether it is appropriate to run a criminal background check on applicants. As social media becomes more common, it is possible, although not yet known, that the scope of an employer’s duty to investigate job applicants for safety risks may extend to conducting social media or other online searches.

Fair Credit Reporting Act (“FCRA”) & State Background Check Laws

When an employer conducts a background search on an applicant entirely in-house using only the employer’s staff, background check laws generally do not apply. However, when an employer uses an outside entity for a fee to obtain a criminal background check or to otherwise obtain a background report or investigate an applicant’s background for employment purposes, the employer must comply with background check laws, including FCRA and any applicable state law. FCRA establishes a number of legal requirements for obtaining a background report, including notice, consent, and various procedural steps that must be followed before acting on background check information to withdraw a job offer. Although the legal landscape of online searches is still evolving, it is likely that an employer who pays an outside entity or uses a fee-based online service to obtain online background information on an applicant must comply with FCRA and any applicable state background check laws.

While background checks arise most often in the hiring context, employers sometimes pay outside entities to obtain criminal background information about or to otherwise investigate a current employee. In these situations, FCRA and state background check laws may still apply.

Disparate Impact Claims

In recent years, the EEOC announced its E-RACE Initiative (“Eradicating Racism and Colorism in Employment”) which is aimed at reducing race discrimination in hiring. The EEOC has sued employers in several high-profile cases for policies and practices that the EEOC believes lead to systemic discrimination in hiring. Although the cases so far have involved employer use of background checks, the EEOC has also announced its intent to pursue employers that require the use of video résumés or other technological application processes. According to the EEOC, these practices lead to “disproportionate exclusion of applicants of color who may not have access to broadband-equipped computers or video cameras.” Given the EEOC’s very public statements about technology and disparate impact claims, employers should take care to ensure that their hiring policies and practices in hiring do not result in systemic discrimination.

In 2012, the EEOC issued guidance on employers’ use of criminal history information to exclude individuals from employment. Because persons of color are arrested and convicted at disproportionate rates, excluding individuals from employment based on a criminal record can be unlawful race discrimination under Title VII of the Civil Rights Act of 1964. To be lawful under Title VII, an employment exclusion must be based on proven criminal conduct and must be job-related and consistent with business necessity. In light of the EEOC’s new guidance, employers should tread carefully and consult with legal counsel before excluding someone from employment based on criminal history information, including information found online.

In addition to following the above-described guidelines, employers must comply with Minnesota’s “Ban the Box” law, which restricts the timing of employer inquiries into an applicant’s criminal past. See Minn. Stat. §§ 364.021, 364.06, 364.09. Effective January 1, 2014, Minnesota law requires employers to wait until a job applicant has been selected for an interview, or a conditional offer of employment has been extended, before inquiring about an applicant’s criminal history or conducting a criminal background check.

CREDIT: The content of this post has been copied or adopted from the Minnesota Department of Employment and Economic Development’s “A Legal Guide to the Use of Social Media in the Workplace” Guidebook