All the World's a Stage: The Internet and Employment Law

July 2012 By Joe Kelly
Tennessee Labor and Employment Newsletter

CNN reports that 79% of all businesses use the Internet to investigate job applicants.[i]  A recent poll revealed that 70% of hiring managers have said they have rejected a job applicant based on information they found online.[ii]  And while companies have long used criminal background checks, credit reports, and, more recently, Google and LinkedIn to investigate potential hires, many companies are now requiring job candidates to also pass a social media background check.[iii]

Anecdotally, we have all heard of applicants losing job offers for being a little too revealing on the Internet, whether it is nude photos or other online faux pas.  But what laws, if any, govern an employer's ability to scrutinize the Web for applicant behavior (or current employee behavior)?[iv]

The World Wide Web

If an employer wanted to search for prospective or current employee postings on the Web, where would be the best place to look?  There are five Internet tools that have been consistently popular for adults over the last few years.  Blogs are a type of site that allows the author to write (or rant) on any subject the author chooses.  Forums are designed for posting questions on topics of interest and soliciting responses.  Social networking sites include LinkedIn and Facebook.  Wikis allow people to edit common content—the most famous example is Wikipedia.  Virtual communities are online simulated environments (often role playing games).[v]  Any and all of these types of sites can present a gold mine of information regarding a person.

The Fair Credit Reporting Act

It has long been established that employers who utilize companies to perform background checks must be cognizant of the requirements of the Fair Credit Reporting Act ("FCRA") (required notice and authorization, including pre-adverse action notice that provides the report and final adverse action notice with required FCRA language).  However, if a company uses a provider to just perform a Google search of public information, do the same requirements apply?    The Federal Trade Commission assumes the answer is yes.  In a published letter, the FTC concluded that a company called Social Intelligence Corporation that performed such searches was indeed subject to the provisions of the FCRA.[vi]   Based on this, there is some responsibility on the part of the service provider and employer to ensure accuracy of the information gathered from the Web, or at least allow the employee the opportunity to "correct the record."

Issues Related to Applicants

As noted above, employers who utilize reports from third party vendors must be cognizant of their responsibilities under the FCRA.  However, even employers who conduct such searches in-house should be aware of other possible restrictions on the use of information gleaned from the Internet.  For example, 11 U.S.C. § 525(b) prohibits any termination or discrimination regarding employment solely because an employee or applicant has sought the protections of the bankruptcy code. 

While a job applicant, like any other person, has a general right of privacy, the review of self- published public material on the Internet would not seem to infringe upon this right.  However, if a prospective employer attempts to circumvent access restrictions on personal websites, there is the possibility that the employer could either commit a tort or violate the Stored Communications Act (which prohibits unauthorized access to Internet stored communications).[vii]

Issues Related to Current Employees

Issues that arise in searching the Internet regarding applicants are also present with respect to current employees.  However, there are additional considerations as well—some of which weigh on the employee and some of which weigh on the employer.

For employees, common law duties owed to the employer do not stop at the computer keyboard.  Therefore, an employee's use and dissemination of information and opinions on the Web cannot violate duties owed to the employer regardless of the medium used.  These duties include:  the common law duty of loyalty; the duty to maintain confidential information and trade secrets; and the duty to not defame, harass or intimidate other employees.[viii]

It is not only employees who face heighted obligations once an employment relationship is established.  In addition to a general right of privacy and a right to be free from defamation or attack, current employees enjoy a right to protest certain employer actions.[ix]  The National Labor Relations Board has issued guidance for when an employer's social media policy may be unlawfully over-broad.  In general, the NLRB has taken the position that an employer's policy violates the National Labor Relations Act if it prohibits an employee from engaging in protected concerted activities and/or union activities protected by the NLRA or where the policy "is so ambiguous that an employee could reasonably construe it as prohibiting activity protected by the NLRA."[x]

Additional Issues Related to Public Employees

A public employee's right to expression differs from a private employee in one important aspect.  Since state action is involved in disciplining or terminating a public employee, there is a First Amendment analysis involved in employment actions that implicate employee expression.  Generally, the First Amendment gives public employers latitude in disciplining employees for speech.  The First Amendment does not protect public speech related to bona fide job duties or speech that is not deemed to be of "public concern."  Even if a matter of "public concern" is involved, a public employee can still be disciplined if the speech's impact on operations outweighs the employee's interest in making the speech and the public's interest in hearing it.[xi]

Conclusion

Internet content can be very revealing about their creators-often much more revealing than the creators perhaps intended.  Employers are allowed to review internet contact regarding prospective and current employees and factor that information into job related decisions.  However, use of the internet is not without certain legal obligations and constraints and the web browsing employer must be aware of them or potentially suffer legal consequences. 


 

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[i] Job Applicants Are Changing Their Facebook Names to Protect Their Privacy. The John Tesh Radio Show.  http://www.tesh.com/topics/workplace-category/job-applicants-are-changing-their-facebook-names-to-protect-their-privacy/cc/9/id/15276. 3 May 2012.

[ii] Id.

[iii] Preston, Jennifer. Social Media History Becomes a New Job Hurdle. N.Y. Times, 20 July 2011. http://www.nytimes.com/2011/07/21/technology/social-media-history-becomes-a-new-job-hurdle.html?pagewanted=all. 3 May 2012.

[iv] This article does not address employee use of employer provided Internet and computers.  Rather it addresses the employer's ability to utilize information on the World Wide Web in making employment decisions.

[v] Paul, Richard A. and Chung, Lisa Hird. Brave New Cyberworld:  The Employer's Legal Guide to the Interactive Internet, The Labor Lawyer, Volume 24, Number 1. Summer 2008.

[vi] Gordon, Philip. "Social Checks" Come of Age:  What Does it Mean for Employers?" Workplace Privacy Counsel. 11 July 2011. http://privacyblog.littler.com/2011/07/articles/background-checks/social-checks-come-of-age-what-does-it-mean-for-employers/. 3 May 2012.

[vii] Sprague, Robert. Googling Job Applicants. GPSOLO, Volume 25, Number 2. March 2008. http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/labor_googlingjob.html. 3 May 2012.

[viii] Paul, Richard A. and Chung, Lisa Hird.

[ix] Id.

[x] Bodzy, Ben. The Employer's Paradox:  Drafting and Applying Social Media Policies to Pass NLRB Muster. Nashville Bar Journal, March 2012: 10-11, 17.

[xi] Hogan, Christopher. Kings of Infinite Space? Public Employees, Social Media, and the First Amendment. http://npkhlaw.com/public-employees-social-media-and-the-first-amendment/.  3 May 2012.

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