The Background of Our Being: Internet Background Checks in the Hiring Process

Abstract

Many employers are searching job applicants on Google, Facebook, and any number of other search engines and social networks. For some, this search is a cause of great concern, leading the FTC and Senators Al Franken and Richard Blumenthal, among others, to investigate the issue. So-called “internet background checks” can vary greatly in their degree of thoroughness; on the one hand, a third-party agency might produce a formal “internet background report” documenting all websites consulted and evaluating every source, while on the other hand, a member of the employer’s hiring committee might simply search the candidate off the record. Both of these practices can inform the decision-makers in the hiring process, and both, ultimately, afford the employer access to information about the candidate they might not otherwise find in the rest of the candidate’s application. This Note analyzes the legal and normative issues surrounding internet background checks. After reviewing studies showing that, at minimum, a fifth to a quarter of employers use internet search engines or social networks to screen candidates at some point during the hiring process, this Note suggests a taxonomy of three different approaches to internet information gathering. It then considers how fair credit reporting and equal employment laws might apply to these three approaches. The Note then concludes with recommended best practices for employers in light of this legal analysis. © 2013 Alexander Reicher. This Note is the first-place winner of the Berkeley Technology Law Journal’s annual student writing competition. † Associate, Latham & Watkins LLP, San Francisco; J.D., University of California Berkeley School of Law (2012). I would like to thank Chris Hoofnagle for his helpful guidance while writing this Note and Chris Conley and Tom Reicher for their comments on earlier drafts. I would also like to thank my wife, Janice, for her assistance and support throughout the entire process. The views expressed in this Note are solely those of the author. 0115-0154_REICHER_081313_WEB (DO NOT DELETE) 8/13/2013 4:55 PM 116 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 28:115