As the state of emergency in Maryland ends this summer, many employers are looking to hire new employees to deal with an increase in customer and client demand. For many of those employers, the hiring process includes some form of a background investigation of a prospective employee. Many employers that perform background checks on applicants hire a third party to do that investigation, often to check an individual’s criminal conviction history, involvement in civil lawsuits, and driving record, where relevant. Some employers, however, choose to perform their own “background checks” by using Google searches, reviewing social media websites, reading personal blogs, and investigating other online resources. Few of these companies consider the legal risks associated with performing these do-it-yourself background checks.
The “benefit” of performing these searches would seem obvious. An employer often can find a wealth of information online that a background check company typically might not provide. Information about an individual’s judgment, character, and maturity are reasons frequently cited by employers justifying a DIY background check of an applicant’s social media. However, other information also comes up in those searches. For example, information about the candidate’s age, race, nationality, disability, marital status, religion, sexual orientation, and familial status usually are also discoverable online quite easily.
The first question, however, is – once you have this information, what are you allowed to do with it?
In most cases, the answer is: Nothing. The law prohibits employers from discriminating against individuals on the basis of these classifications (among others). For example, a company that decides not to hire an applicant because of his or her religious beliefs likely would be committing a violation of federal law. Therefore, the information obtained should not be considered in connection with making an employment decision, and this information typically should be ignored or discarded – making the search a waste of time.
And that’s the best-case scenario.
Worse still, if an individual in a protected classification is not hired and learns that this information had been obtained before the decision was made, it may create a basis for a discrimination claim. Even if a company did not use this information as a basis not to hire the applicant, the fact that it obtained this information certainly makes it seem that way.
The risk of simply possessing this information may be made even worse if the company has not been performing its internal background searches consistently. Imagine if a more onerous background check is found to have been performed on an unsuccessful candidate who is in a protected classification than for non-protected individuals. That situation would provide even more ammunition for a claim of unlawful discrimination.
Suffice it to say that it is important for companies to know how to perform background checks properly.
At Luchansky Law, our attorneys routinely assist employers in reviewing their hiring practices, such as background checks, to ensure compliance with all anti-discrimination laws, including Title VII. If your business would like guidance on its background check practices, give us a call at (410) 522-1020.