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Problem: Today’s young adult job seekers are part of the first generation to have grown up on the Internet. Many, if not most, have established personal pages on sites such as Facebook, MySpace, Xanga and LinkedIn. They take and post pictures of their activities and unashamedly describe their religious, political and even sexual preferences. Seemingly without qualms, they make all this information about themselves available to anyone who surfs the Web. Many business professionals who have authority to make hiring decisions are astonished at what Generation Y is willing to share online. Until fairly recently, businesses were ignoring the opportunity offered by these postings to learn more about job applicants by 鈥渃hecking them out,鈥� on the Internet. Those that choose to look online need to recognize the risks inherent with this 21st century technique and develop a set of parameters for effective applicant screening in the digital age.

Solution: As always, employers should consider the following when conducting any reference checks: 1) how to maximize the chance of hiring someone who will be a dependable, successful employee; 2) how to minimize the risk of negligent hiring liability; and 3) how to avoid legal liability under various statutes and the common law of invasion of privacy.

Unfortunately for employers, no hard-and-fast rules apply in determining how extensive a background check to conduct. What is reasonable will depend on the type of job involved and the potential exposure or risk of harm an employee in that position could pose. Or, perhaps, the amount of time a hiring manager wants to spend searching through MySpace and Facebook. However, there are some general tips that should help balance the scales and develop a record of diligence in the event an employee engages in conduct that leads to a negligent hiring lawsuit:

鈥� Always complete a background check before hiring any applicant, not after.

鈥� Review the applicant’s resume for gaps in work history. A checkered work history could reflect imprisonment, detention for criminal activity, current alcohol or drug abuse, or other employee problems.

鈥� Obtain the applicant’s consent to contact former employers. This authorization eases a past employer’s fear of defamation. An employee’s reluctance to give consent can signal trouble.

鈥� Google the applicant. The nature and level of the job will likely affect the usefulness of this tool. Most executive recruiters use this tool, and it would be abnormal for applicants for certain types of positions not to have multiple hits in a Google search. Be sure to use Google’s features to search the Web, news sites, blogs and image sites.

鈥� Also consider a search of social-networking sites such as MySpace and Facebook, which will only require that whomever performs the search be a member of these sites.

Remember that just because you read it on the Internet doesn’t mean it’s necessarily true. Derogatory information about the individual may be the result of a joke, a hoax or a vendetta by some enemy the person has made over the years.

You also may learn, however, information about the applicant that you’d never ask about in an interview 鈥� information you may well be better off not knowing; since it is considered in the hiring decision, you could be subject to potential liability. The Equal Employment Opportunity Commission and state agencies will occasionally take the position in addressing a charge of discrimination that if an employer knows some fact about an individual that implicates a protected status, the presumption is that it was considered and could have made a difference.

For instance, in Web literature, there is a reference to a woman whose blog discussed the fact that she had sued a previous employer after she believed she had been sexually harassed.

When she did not get a job offer for a position for which she believed herself to be a very strong match, she guessed that it 鈥渕ust have been because the employer knew about my suit.鈥� Topics that come to mind that are revealed in a Facebook posting could be political leanings, religion and sexual orientation 鈥� none of which would or should come up in an interview.

The final consideration to be aware of is the concern about a potential invasion of privacy claim brought by an applicant. Because Google does not search private invitation-only sections of Facebook, or invitation-only areas in MySpace and Facebook, or password-protected blogs, it will only uncover 鈥渉its鈥� on Web pages that are open and accessible to everyone. Regardless of any misconceptions about a person’s 鈥減ersonal page,鈥� there is no expectation of privacy as to such sites. Employers should feel secure that such general Internet searches are acceptable.

Similarly, searches through 鈥減ublic鈥� (i.e. non-password-protected or non-invitation-only) sections of social networking sites, such as Facebook, MySpace, and LinkedIn, should not raise invasion-of-privacy concerns. No one should be able to convincingly claim to have an expectation of privacy as to information available to anyone with an Internet connection.

However, courts have held that users of these sites who post information in sections that are password-protected or 鈥渂y invitation only鈥� have a reasonable expectation that such information will remain private. Therefore, employers should resist the temptation to somehow discover what is posted on these private pages, just as an employer would certainly not sanction a hiring manager breaking into an applicant’s house to read through his or her private diary kept in a bedside cabinet.

Rich Meneghello is a partner at the Portland office of Fisher & Phillips LLP, one of the oldest and largest employment law firms in the country, and is dedicated to representing the interests of management. He can be reached at [email protected] or 503-205-8044.