Can An Employer Be Liable For Not Googling A Job Applicant?

I’ve written and spoke a lot during the last year on the topic of using the Internet (primarily Google) to conduct background research on job applicants and employees. I have always maintained that employers are permitted to use the Internet to conduct these “background checks.”

There were a number of attorneys out there who recommended that employers not do this, and there probably attorneys who still are maintaining this position. But a job applicant, or employee, would have a very hard time claiming that they have a privacy interest in anything posted on the Internet for everyone else to see. For example, individuals who do not take careful steps to protect their Facebook information, would have a hard time arguing that because they did not limit access to their information that it would still be private information.

I think the bigger concern these days is if employers do not search out potential applicants on the Internet. As Seth Godin recently noted, a friend of his found some very interesting information through Google about three people he thought would be a good housekeeper.

I could easily see a case made against an employer for negligent hiring when a simple and free Google search would have put the employer on notice that the individual has a criminal record or might pose a threat to other employees or customers. Now, employers still need to be careful about the information they are relying upon: it goes without saying that everything you read on the Internet is not true and some information found in the Internet cannot be used for employment purposes. For example, California’s Megan’s Law website that provides information about registered sex offenders clearly sets forth the information cannot be used for employment purposes.
 

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