Privacy Issues in the Community College Workplace

1. I NFORMATION A VAILABLE F ROM P UBLIC S OURCES In conducting background checks on applicants, many employers resort to publicly available information, including online resources. “Googling” the name of an applicant to search for entries in blogs, or social networking websites like LinkedIn or Facebook has now become a common practice for many employers. This type of online background check does not generally put the prospective employer at legal risk for an invasion of privacy claim because the information obtained online is publicly available, and in many instances it is posted by the job applicant on his or her LinkedIn or Facebook page. 32 However, an employer may want to employ one of the following approaches in its online background checks:

 Provide notice to the job applicant prior to searching. The employer can either access the site before there is a chance for the job applicant to modify it, or access the site after the applicant has had an opportunity to modify the site/page.  Access without notice to the job applicant, but provide the applicant with an opportunity to respond to questions concerning online information.  Access the information without notice and provide no opportunity for the applicant to respond; or

 Not access the online information at all.

While information found on public sites on the Internet is readily available to anyone, caution should be used in relying on this information for exactly the same reason. Information found on the Internet may not accurately reflect the qualities or capacities of the applicant in question. In recent years, for example, there have been numerous reports of false information posted either out of spite or merely as a joke. Even if such information is true or accurate, the question still remains whether it is pertinent to the applicant’s qualifications for the position in question. In addition, employers must be careful not to consider information found on the Internet that the employer may not legally consider in screening applicants. For example, social networking pages may provide information about an applicant’s protected status such as the applicant’s age, race, marital status, religion and similar information. This is information that an employer may not consider in making hiring decisions. Accordingly, when employers consider online sources of information, employers should be careful in ensuring that: (1) the information found is true and reliable (2) the information is pertinent to the applicant’s ability to perform the job, and (3) that the information falls into a category that the employer may legally elicit from the applicant during an interview. Additionally, as of January 1, 2013, Labor Code section 980 prohibits an employer from requiring or requesting that an employee or applicant do any of the following: (1) disclose his or her social media username or password; (2) access his or her personal social media in the presence of the employer; or (3) divulge any personal social media. 33 In short, an employer must not request or require employee personal media usernames or passwords, or seek access to an employee’s personal social media, as part of the application process or during employment.

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 17