Applicants’ mug shots may be just a click away

by Peter Lowe

There’s a wealth of information about potential employees that employers may access by conducting some rudimentary Internet searches. In fact, the searches are so simple that even I can manage to do them! But what’s not so simple is determining the nature, quality, and reliability of the information you find. 

Background

Some readers may have seen the disturbing October 5 New York Times article about the website mugshots.com, “Mugged by a Mug Shot Online.” The Times‘ research revealed that some enterprising—and, in my opinion, unscrupulous—operators have collected police department mug shots through Freedom of Information Act (FOIA) requests and posted them on the Web. An employer that conducts a Google search of applicants might find that the polished and neatly pressed applicant it just interviewed is the same person captured in a grainy mug shot taken when he was booked at the police station.

The unscrupulous part of the business is the payment required to remove a photograph from the site, which might be as much as $400. Anyone looking for a job would feel no choice but to pay that ransom.

Considerations for employers

Should employers be conducting Web searches on applicants? The low-risk legal approach is to stay off the Internet, but I know that isn’t realistic. A recent CareerBuilder study found that two in five companies use social networking sites to screen applicants. If you’re one of these employers, I have a few practical suggestions.

1. For “mug shots” type sites, just don’t go there. The existence of a mug shot means the person was arrested. It doesn’t mean he was convicted. The Equal Employment Opportunity Commission (EEOC) has taken the position that an employer’s reliance on arrest data may be discriminatory because it could have a disparate impact on some protected groups that face higher arrest rates. If you do click on the site and find your applicant, I suggest that you make your hiring decision based on a criminal background check of convictions. However, you shouldn’t run criminal background checks only on certain candidates.

2. Don’t automatically disqualify an applicant with a criminal history. If you discover your applicant has a criminal history, you should look at the nature of the crime, the date, and any pattern of criminal conduct and evaluate whether it affects the applicant’s ability to do the job. Evidence of rehabilitation also should be considered for serious crimes that occurred many years ago.

It’s reasonable to reject an applicant convicted of theft because the job will provide access to your customers’ credit card information. It may be unreasonable to disqualify a candidate for a sales position because he was convicted of possession of marijuana 10 years ago. The EEOC has issued guidelines on criminal screening, and we have worked with our clients to develop criteria that can be applied in these circumstances.

3. Know that there are certain off-limits questions and topics during interviews. You would never ask an applicant to reveal her age, religion, medical condition, sexual orientation, or race. However, a simple Google search may lead you to all of that personal and sensitive information. I’m often asked whether the fact that an employer might obtain such information before making a job offer is illegal. To date, I am not aware of any case in which a court has made that finding.

Of course, if you use off-limits information to reject a candidate, you will face liability. The problem that arises when you check an applicant’s social media is that it removes your ability to plead ignorance about protected class information, particularly if you rejected the applicant before an interview. If you elect to vet social media, it’s best to assign the task to a person who doesn’t make hiring decisions and filters out the protected class information before decision makers see it.

4. Remember that everything you read on the Internet (or in the papers) isn’t necessarily true. Although relying on false information isn’t illegal, it certainly doesn’t look good. Moreover, it may mean that you lose a highly qualified candidate.

5.  Be aware that sometimes you will be criticized for not exercising due diligence. The school department in my hometown of Brunswick came under fire because a newly hired principal had experienced problems in other communities and an Internet search revealed newspaper articles about his past challenges. It turned out that the issues had been disclosed during his screening, but you can bet that the critics would have had a field day if the school department had missed the information.

I often recommend that our public-sector clients conduct additional background screening, including researching media stories about candidates who have been public figures in their communities.

6. Be ready for the truth. On the plus side, an applicant’s social media postings may present a more honest and unvarnished picture than the packaged and scripted candidate you meet at the interview. Applicants have been rejected for social media postings in which they breach their current employer’s confidentiality, trash coworkers, and disparage their company’s products.

If you rule out an otherwise well-qualified candidate on that basis, don’t be shy about documenting your reason and, if necessary, giving an honest explanation to the applicant. In my experience, employers get themselves into trouble when they avoid telling the truth and instead provide some euphemistic explanation that’s intended to prevent hurt feelings.

Takeaway

I suspect that we’ve only seen the tip of the iceberg in terms of the information employers will be able to glean from the Internet. But if you think that the mere existence of an online mug shot spells doom for a job applicant, it’s worth pointing out that one of America’s leading entrepreneurs and philanthropists was arrested in Albuquerque in 1977. The booking photo (available online) shows a grinning and bespectacled 19-year-old Bill Gates. Imagine if corporate America had considered him unemployable.

Peter Lowe is a partner with Brann & Isaacson in Lewiston, Maine, serving as lead labor counsel for some of the premier employers in Maine, including L.L. Bean, Inc. In this role, Peter advises clients on personnel practices and employee relations matters. He is the editor of Maine Employment Law Letter. He can be contacted at plowe@brannlaw.com

Excerpted from Maine Employment Law Letter and written by attorneys at the law firm of Brann & Isaacson. MAINE EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. Contact the attorneys at Brann & Isaacson
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