Negligent hiring and the information age: how state legislatures can save employers from inevitable liability.

• Author: Peebles, Katherine A.

TABLE OF CONTENTS INTRODUCTION I. THE LEGAL NECESSITY OF PRE-EMPLOYMENT INTERNET SCREENING A. Defamation B. Negligent Hiring II. THE LEGAL HAZARDS OF PRE-EMPLOYMENT INTERNET SCREENING A. Discrimination 1. Federal Antidiscrimination Laws 2. State and Local Antidiscrimination Laws B. State Statutory Protection for Off-Duty Conduct C. Invasion of Privacy Torts III. THE SOLUTION: PRESUMPTIONS, GUIDELINES, AND THE APPLICANT'S ROLE A. Statutory Presumptions Against Negligent Hiring 1. Proposed Statute 2. The Shortfalls of Existing Law 3. Employers' Concerns B. Employee Selection Guidelines C. The Applicant's Role CONCLUSION APPENDIX INTRODUCTION

A cursory review of job advice websites reveals a common theme: applicants should be wary of their Internet usage because employers routinely "Google" their prospective employees. (1) Stories about job seekers who lose employment opportunities due to unflattering online information may sound like urban legends, but recent studies indicate that employers are conducting online searches as part of their pre-employment screening processes, (2) and they are taking the information that they discover very seriously. One 2010 study commissioned by Microsoft found that 78 percent of recruiting and human resources personnel use search engines to evaluate potential employees, and 63 percent visit social networking sites as part of the screening process. (3) The same study found that 70 percent of these hiring officials had rejected candidates in light of the information that they gleaned from Internet searches. (4) In contrast, a 2009 study conducted by CareerBuilder.com found that only 45 percent of hiring officials had accessed job applicants' social networking profiles, suggesting that the number of employers that utilize this facet of the Internet as a pre-employment screening tool is growing. (5)

From one perspective, an employer that opts not to conduct pre-employment Internet screening is downright foolish. The Internet offers employers immediate access to a stockpile of information regarding job seekers. (6) Furthermore, in many cases, the job applicants themselves have prepared and disseminated this online material. (7) A simple Google search can help an employer ascertain whether a candidate would be a good fit for the position by revealing whether the applicant is lazy, is antisocial, or has lied in his or her application materials. (8) In essence, the Internet allows employers to overcome the sterilized nature of the application and interview process by revealing the real person behind the resume.

The Internet may sound like a godsend for hiring officials, but it also forces employers to confront a new realm of complicated legal issues. In addition to risking unwise hiring choices, employers that opt not to perform online screening may be flirting with liability. An analysis of negligent hiring--a tort that allows third parties to hold employers responsible for the harmful acts of their employees--suggests that employers may actually have a duty to search the Internet. (9) Case law indicates that if an employer fails to conduct an Internet search prior to hiring a job candidate and doing the search would have revealed that the applicant had dangerous proclivities, the employer could be held liable if the employee later injures someone. (10)

This potential liability naturally incentivizes conducting pre-employment Internet screening. After all, these searches benefit the employer and the public by weeding out unfit applicants. However, employers that do conduct pre-employment Internet screening--either to satisfy the duty to search or to learn more about prospective employees--expose themselves to additional liability if they discover and utilize certain online information. For example, federal antidiscrimination laws prohibit employers from making employment decisions based on myriad facts that individuals regularly share online, such as their religion, age, and medical information. (11) Pre-employment Internet screening thus presents a Catch-22 for diligent employers: a hiring official who fails to conduct these investigations breaches the duty to search, but an employer that makes use of online information increases the likelihood that a snubbed prospective employee can successfully bring a host of other lawsuits.

This Note analyzes this dilemma and suggests a way for states to help employers navigate the fine line between the duty to search and the hazards of pre-employment Internet screening. To date, relatively few scholars have explored this problem, (12) and many commentators frame it as a managerial issue rather than as a legal quandary. (13) Furthermore, whereas this Note focuses exclusively on the risks that private employers face when they conduct preemployment Internet screening, some of the most in depth prior treatment of this subject deals exclusively with public employers. (14)

Part I of this Note explains why two legal doctrines--defamation and negligent hiring--have made online screening a necessity for modern employers. Part II enumerates the legal hazards of these online investigations, including federal, state, and local antidiscrimination laws, state statutory protections for off-duty conduct, and common law invasion of privacy torts. Finally, Part III proposes a three-pronged solution to the online-screening conundrum. First, states should create statutory presumptions that employers that satisfy certain prerequisites--such as conducting criminal background checks and interviewing applicants--are not liable for negligent hiring. Second, employers that want to investigate potential employees on the Internet should adopt policies for conducting these searches. And third, job seekers should keep in mind that tales about applicants who lose job offers due to employers' online discoveries are not urban legends; they are the byproduct of the legal and practical realities of the information age.

1. THE LEGAL NECESSITY OF PRE-EMPLOYMENT INTERNET SCREENING

   The interplay between two causes of action may drive employers' increasing reliance on pre-employment Internet screening. First, the prospect of defamation lawsuits encourages employers to withhold information about their past employees. (15) As a result, when a prospective employer requests an employment reference, it learns little more than the applicant's prior job title. Second, negligent hiring demands that employers investigate candidates' backgrounds. (16) Because the possibility of defamation litigation has silenced the applicants' previous employers, hiring officials are forced to replace this source of information by using online pre-employment screening techniques.

   1. Defamation

      Employers may turn to the Internet to learn more about job seekers because they cannot obtain this information from its most credible source: the applicants' former employers. At least one court has held that employers have no duty to respond to potential employers' requests for job references, (17) and studies demonstrate that, over the past two decades, employers have become increasingly unwilling to share information about their past employees with prospective employers for fear of litigation. (18) The prospect of legal action has driven many companies to adopt "name, rank, and serial number" rules that prohibit managers from divulging substantive information to the hiring officials at other organizations. (19) Under these policies, employers will not reveal anything that an employer could not glean from a prospective employee's truthful resume and cover letter. (20) Rather than augmenting a hiring official's knowledge of the applicant's background, seeking a reference from a cautious former employer has become a fruitless formality.

      Although employees have successfully used defamation lawsuits to hold their former employers liable for sharing unfavorable information with potential employers, (21) employers' response to this threat far outweighs the potential for an unfavorable verdict. (22) To bring a viable cause of action, the plaintiff must demonstrate that the allegedly defamatory statement was false. (23) Therefore, a court will not hold an employer that gave a truthful employment reference liable for defamation. Courts have also recognized that a qualified privilege can pertain to employers that share information about their former employees with the hiring officials at other organizations. (24) If the employer asserts that the privilege applies, the employee bringing the defamation claim bears the burden of demonstrating that the employer shared too much information with too many people or shared the information with a malicious motive. (25) In addition to benefitting from these common law buffers, many employers that provide truthful references also enjoy the protection of state statutes that grant immunity to organizations that give employment references. (26) Despite these safeguards, the prospect of being sued--and the expenses associated with the legal process--still renders previous employers an unreliable source of information for hiring officials. (27) It is therefore unsurprising that employers are flocking to the Internet in order to research potential employees: as job applicants share more and more information about themselves on the Internet, (28) Google searches have become an increasingly viable way for employers to fill the informational gaps that employment references used to occupy.

   2. Negligent Hiring

      Although defamation's ramifications have turned pre-employment Internet screening into a practical necessity, employers may also search online to protect themselves from tort liability. The doctrine of respondeat superior--which "enjoys an unquestioned acceptance in all common law jurisdictions" (29)--allows third parties to hold employers liable for the harmful acts of their employees. (30) In order to bring a successful cause of action, the plaintiff must demonstrate that the...