Negligent hiring and the information age: how state legislatures can save employers from inevitable liability. (2024)

TABLE OF CONTENTSINTRODUCTIONI. THE LEGAL NECESSITY OF PRE-EMPLOYMENT INTERNET SCREENING A. Defamation B. Negligent HiringII. 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 TortsIII. 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 RoleCONCLUSIONAPPENDIX

INTRODUCTION

A cursory review of job advice websites reveals a common theme:applicants should be wary of their Internet usage because employersroutinely "Google" their prospective employees. (1) Storiesabout job seekers who lose employment opportunities due to unflatteringonline information may sound like urban legends, but recent studiesindicate that employers are conducting online searches as part of theirpre-employment screening processes, (2) and they are taking theinformation that they discover very seriously. One 2010 studycommissioned by Microsoft found that 78 percent of recruiting and humanresources personnel use search engines to evaluate potential employees,and 63 percent visit social networking sites as part of the screeningprocess. (3) The same study found that 70 percent of these hiringofficials had rejected candidates in light of the information that theygleaned from Internet searches. (4) In contrast, a 2009 study conductedby CareerBuilder.com found that only 45 percent of hiring officials hadaccessed job applicants' social networking profiles, suggestingthat the number of employers that utilize this facet of the Internet asa pre-employment screening tool is growing. (5)

From one perspective, an employer that opts not to conductpre-employment Internet screening is downright foolish. The Internetoffers employers immediate access to a stockpile of informationregarding job seekers. (6) Furthermore, in many cases, the jobapplicants themselves have prepared and disseminated this onlinematerial. (7) A simple Google search can help an employer ascertainwhether a candidate would be a good fit for the position by revealingwhether the applicant is lazy, is antisocial, or has lied in his or herapplication materials. (8) In essence, the Internet allows employers toovercome the sterilized nature of the application and interview processby revealing the real person behind the resume.

The Internet may sound like a godsend for hiring officials, but italso forces employers to confront a new realm of complicated legalissues. In addition to risking unwise hiring choices, employers that optnot to perform online screening may be flirting with liability. Ananalysis of negligent hiring--a tort that allows third parties to holdemployers responsible for the harmful acts of their employees--suggeststhat employers may actually have a duty to search the Internet. (9) Caselaw indicates that if an employer fails to conduct an Internet searchprior to hiring a job candidate and doing the search would have revealedthat the applicant had dangerous proclivities, the employer could beheld liable if the employee later injures someone. (10)

This potential liability naturally incentivizes conductingpre-employment Internet screening. After all, these searches benefit theemployer and the public by weeding out unfit applicants. However,employers that do conduct pre-employment Internet screening--either tosatisfy the duty to search or to learn more about prospectiveemployees--expose themselves to additional liability if they discoverand utilize certain online information. For example, federalantidiscrimination laws prohibit employers from making employmentdecisions 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 diligentemployers: a hiring official who fails to conduct these investigationsbreaches the duty to search, but an employer that makes use of onlineinformation increases the likelihood that a snubbed prospective employeecan successfully bring a host of other lawsuits.

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

Part I of this Note explains why two legal doctrines--defamationand negligent hiring--have made online screening a necessity for modernemployers. Part II enumerates the legal hazards of these onlineinvestigations, including federal, state, and local antidiscriminationlaws, state statutory protections for off-duty conduct, and common lawinvasion of privacy torts. Finally, Part III proposes a three-prongedsolution to the online-screening conundrum. First, states should createstatutory presumptions that employers that satisfy certainprerequisites--such as conducting criminal background checks andinterviewing applicants--are not liable for negligent hiring. Second,employers that want to investigate potential employees on the Internetshould adopt policies for conducting these searches. And third, jobseekers should keep in mind that tales about applicants who lose joboffers due to employers' online discoveries are not urban legends;they are the byproduct of the legal and practical realities of theinformation age.

I. THE LEGAL NECESSITY OF PRE-EMPLOYMENT INTERNET SCREENING

The interplay between two causes of action may driveemployers' increasing reliance on pre-employment Internetscreening. First, the prospect of defamation lawsuits encouragesemployers to withhold information about their past employees. (15) As aresult, when a prospective employer requests an employment reference, itlearns 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 hassilenced the applicants' previous employers, hiring officials areforced to replace this source of information by using onlinepre-employment screening techniques.

A. Defamation

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

Although employees have successfully used defamation lawsuits tohold their former employers liable for sharing unfavorable informationwith potential employers, (21) employers' response to this threatfar outweighs the potential for an unfavorable verdict. (22) To bring aviable cause of action, the plaintiff must demonstrate that theallegedly defamatory statement was false. (23) Therefore, a court willnot hold an employer that gave a truthful employment reference liablefor defamation. Courts have also recognized that a qualified privilegecan pertain to employers that share information about their formeremployees with the hiring officials at other organizations. (24) If theemployer asserts that the privilege applies, the employee bringing thedefamation claim bears the burden of demonstrating that the employershared too much information with too many people or shared theinformation with a malicious motive. (25) In addition to benefittingfrom these common law buffers, many employers that provide truthfulreferences also enjoy the protection of state statutes that grantimmunity to organizations that give employment references. (26) Despitethese safeguards, the prospect of being sued--and the expensesassociated with the legal process--still renders previous employers anunreliable source of information for hiring officials. (27) It istherefore unsurprising that employers are flocking to the Internet inorder to research potential employees: as job applicants share more andmore information about themselves on the Internet, (28) Google searcheshave become an increasingly viable way for employers to fill theinformational gaps that employment references used to occupy.

B. Negligent Hiring

Although defamation's ramifications have turned pre-employmentInternet screening into a practical necessity, employers may also searchonline to protect themselves from tort liability. The doctrine ofrespondeat superior--which "enjoys an unquestioned acceptance inall common law jurisdictions" (29)--allows third parties to holdemployers liable for the harmful acts of their employees. (30) In orderto bring a successful cause of action, the plaintiff must demonstratethat the employee in question acted within the scope of his or heremployment. (31) In general, employees act outside the scope of theiremployment if they act without authorization, exceed theemployment's space and time constraints, or do not act with thepurpose of serving their employer. (32) Although the doctrine ofrespondeat superior does not impose an affirmative duty to investigatean employee's background, an employer that hopes to avoid vicariousliability may scour the Internet for evidence that a job applicant canfollow instructions without endangering others. (33)

Third parties who seek to hold employers liable for the harmfulacts of their employees can also make use of negligent hiring, (34) acause of action that may saddle prospective employers with anaffirmative duty to search the Internet. Every state recognizes the tortof negligent hiring. (35) Significantly, unlike a claim brought underthe doctrine of respondeat superior, a plaintiff can prevail in anegligent hiring suit even if the employee in question exceeded thescope of his or her employment. (36) Negligent hiring stems from a basicnegligence concept: if someone undertakes an action, such as employingan individual, he or she has a duty to use reasonable care in carryingout that action. (37) In the employment context, exercising reasonablecare requires employers to evaluate potential employees in light of therisks that they may pose to third parties and the public. (38) If anemployer breaches this duty, and the breach causes the plaintiffsinjuries, the employer can be liable for negligent hiring. (39)

The criteria for determining whether an applicant poses a threat ofinjury to third parties vary based on the type of employment inquestion. As the Georgia Supreme Court explained in Munroe v. UniversalHealth Services, Inc., "An employer may be liable for hiring orretaining an employee the employer knows or in the course of ordinarycare should have known was not suited for the particularemployment." (40) One case provides an interesting example of asituation in which discovering that an employee had a history of violentconduct would not render an employer liable for negligent hiring. TheEleventh Circuit held that an employee who may have committed a violentcrime in the past was suitable for quarry work due to his experienceusing heavy machinery. (41) However, in light of Munroe'sreasoning, hiring the same employee may have been inappropriate if thejob at issue had exposed him to the general public and did not invokehis specialized experience. (42)

As the above excerpt from Munroe suggests, foreseeability plays apivotal role in negligent hiring cases, although jurisdictions vary inhow they characterize this facet of the tort. (43) In the seminal caseon negligent hiring, Ponticas v. K.M.S. Investments, the Supreme Courtof Minnesota insisted that "negligence is not to be determined bywhether the particular injury was foreseeable." (44) However, thesame court held that an employee's dangerous tendencies must havebeen foreseeable in order for his or her employer to be held liable fornegligent hiring:

 Liability is predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circ*mstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others. (45)

This "should have been foreseeable" standard stronglyimplies that employers can be held liable for negligent hiring if theyfail to conduct a reasonable level of pre-employment screening andconsequently overlook evidence of an employee's dangeroustendencies.

Although the Ponticas court downplayed the importance offoreseeability, it openly emphasized the significance of reasonableinvestigation. The court explained that "[a]lthough an employerwill not be held liable for failure to discover information about theemployee's incompetence that could not have been discovered byreasonable investigation, the issue is whether the employer did make areasonable investigation." (46) The employer can take the nature ofthe position into account when conducting the background investigation;if the applicant will have little opportunity to harm third parties, theinvestigation need not be as extensive as it would be for a morehigh-stakes position. (47) In sum, a court will hold an employer liablefor negligent hiring only if a reasonable background investigation wouldhave revealed that the employee was likely to commit the dangerous actsthat gave rise to the lawsuit, and what constitutes a "reasonableinvestigation" varies depending on the position for which the jobseeker applies.

The facts from Ponticas provide a useful illustration of thefunctions that foreseeability and reasonable investigation serve innegligent hiring. In that case, a tenant sued the owner of an apartmentcomplex for negligent hiring after the apartment manager used his keysto enter the tenant's apartment and sexually assaulted her atknifepoint. (48) Because the apartment manager had access totenants' homes, his employer had a duty to conduct a reasonableinvestigation to explore whether the manager posed a high risk of injuryto the apartment complex's residents. (49) The employee in questionhad a criminal history of armed robbery and other felonies that acursory criminal background check would have revealed. (50)Additionally, the employee had listed his mother and sister as hisemployment references. (51) Due to the ease with which the employercould have discovered that the employee had committed violent crimes andhad provided sham employment references, the court upheld thejury's finding that the employer was liable for negligent hiring.(52)

In light of the role that foreseeability and reasonableinvestigation play in negligent hiring, some commentators and attorneyshave warned hiring officials that failing to screen potential employeesvia the Internet may expose them to negligent hiring liability. (53)This particular issue has yet to be litigated, (54) but negligent hiringcases indicate that this advice may not be off base. Courts haverepeatedly held that employers have a duty to investigate potentialemployees' backgrounds through criminal history searches and othermeans. (55) In some cases, even when the employer failed to conduct abackground check, the court used the information that the employer couldhave gleaned from such an investigation as the benchmark for determiningwhether the employer should have known about the employee'sdangerous tendencies. (56) The Internet now provides an easilyaccessible source of information regarding potential employees. Becauserunning a Google search is even simpler than conducting a traditionalbackground investigation, courts will almost certainly rule thatemployers should have known about any Internet-based information thatspeaks to an applicant's dangerous proclivities. (57) An employerthat opts against investigating potential employees via the Internetwould likely be liable if a reasonable search would have uncoveredrelevant information. (58)

II. THE LEGAL HAZARDS OF PRE-EMPLOYMENT INTERNET SCREENING

Conscientious employers that regularly conduct pre-employmentInternet screening may satisfy their duty to search, but theysimultaneously enter another universe of liability when they begininvestigating an applicant's online presence. Although the Internetmay reveal information that pertains to an individual's suitabilityfor employment--such as his or her dangerous tendencies--a Google searchcan also provide a problematic window into an employee's personallife. For example, an employer that glances at the photos or informationprovided on an applicant's Facebook profile could learn many factsthat a job seeker would probably never include on his or her resume orreveal during an interview, such as his or her religion, age, nationalorigin, marital status, medical information, tendency to consumealcoholic beverages or smoke cigarettes, and political affiliation. Aprivate employer that takes any of this information into account whenmaking a final hiring decision could face liability under many federal,state, and local laws. (59) Furthermore, the simple act of searching theInternet for information regarding applicants could expose a diligentemployer to tort litigation. (60) The duty to search thereforetranslates into a duty for employers to risk enormous liability.

A. Discrimination

Some major sources of liability for employers that perform onlinescreening are antidiscrimination laws from the federal, state, and locallevels. These statutes and ordinances prohibit employers from makinghiring decisions based on factors ranging from an applicant'sreligion to his or her genetic information. (61) Although somecommentators and attorneys urge employers to conduct preemploymentInternet screening to avoid negligent hiring liability, (62) otherscounsel employers to avoid these online investigations because theyincrease the likelihood that a job candidate will be able to allegeemployment discrimination. (63) The results of the Microsoft studydiscussed in the Introduction indicate that an employee who makes ascreening-related discrimination accusation may have a legitimate claim.The study found that 35 percent of the employers surveyed had rejectedapplicants based on their membership in certain social networking groupsand networks. (64) To illustrate the potential dangers inherent in thisstatistic, one newspaper article explains that an employer that wants tominimize its health insurance premiums may decline to hire a candidateafter noticing that he or she belongs to a diabetes group, (65) therebyviolating the Americans with Disabilities Act (ADA). (66) Otheremployers could make similar hiring decisions based on anapplicant's membership in online groups related to religion, race,sexual orientation, or numerous other protected bases. In addition toimplicating the ADA, employers' online screening may subject themto liability under the Genetic Information Nondiscrimination Act (GINA),Title VII of the Civil Rights Act of 1964 (Title VII), the AgeDiscrimination in Employment Act (ADEA), and various state and localprovisions that define discrimination more broadly than these federalstatutes.

1. Federal Antidiscrimination Laws

As mentioned above, the ADA prohibits discrimination on the basisof a job seeker's disability or association with a person with adisability as long as the employer in question employs at least fifteenindividuals. (67) The ADA Amendments Act of 2008 has amended the ADA todefine "disability" very broadly. (68) Although some of thedisabilities that qualify for ADA protection would be obvious to anemployer conducting a job interview, many covered disabilities would beinvisible to a typical observer. For example, the ADA prohibitsdiscrimination against individuals with medical conditions that impair"major life activities," such as reproduction or sleeping.(69) To understand how disability discrimination via online screeningmay play out in the real world, consider popular blogger HeatherArmstrong of Dooce.com. (70) Armstrong has written at length about herbattle with serious depression and anxiety. (71) If she applied for ajob and her potential employer performed a Google search to learn moreabout her background, it would almost certainly discover these blogentries. The employer may violate the ADA if it opted to hire anothercandidate after baselessly deciding, for example, that Armstrong'sdepression would impede her productivity. (72)

Pre-employment Internet screening could also allow an employer tolearn about an applicant's relationship to someone with adisability or medical condition, which could open the door to furtherdiscrimination-related liability. For instance, a job seeker may keep ablog about his child's medical condition or may mention his elderlyparent's disability on Twitter. As mentioned above, the ADAprohibits employers from discriminating against job seekers based ontheir association with individuals with disabilities. (73) Thisprovision indicates that an employer could be liable if it discovers viathe Internet that a job applicant has a disabled family member andrefuses to hire the applicant on that basis. (74)

GINA presents similar liability hazards for employers that conductonline screening. GINA prohibits organizations that employ at leastfifteen individuals from taking applicants' genetic informationinto account when making hiring decisions. (75) Because GINA concerns anapplicant's genetic information, the statute necessarily prohibitsemployers from making adverse hiring decisions because acandidate's biological family member suffers from a geneticdisorder--such as breast cancer or heart disease--to which the potentialemployee may be susceptible. Therefore, like the ADA, GINA poses twolayers of possible liability for employers that perform onlinescreening: liability based on what the employer learns about candidatesthemselves and liability stemming from what the employer discovers aboutcandidates' family members. GINA went into effect in November 2009and has only recently begun to generate complaints, so it is unclear howa court would approach a case in which an employer learned about a jobseeker's genetic information via the Internet. (76) Nevertheless,as GINA's case law develops, the law is poised to become a sourceof liability for employers that conduct pre-employment Internetscreening.

The ADEA and Title VII create additional liability risks foremployers that investigate job applicants online. Under the ADEA,employers that employ at least twenty individuals cannot discriminateagainst job applicants on the basis of age when the applicant is overthe age of forty. (77) Title VII forbids employers that employ fifteenor more people from discriminating on the basis of a candidate'srace, sex, national origin, color, or religion. (78) The statute'sprohibition of sex-based discrimination encompasses discrimination onthe basis of pregnancy. (79) The Supreme Court has also held that TitleVII bans discrimination stemming from sex stereotypes. (80) Althoughfederal law does not prohibit employers from discriminating against jobapplicants on the basis of their sexual orientation or gender identity,some courts have found that the Supreme Court's decision regardingsex stereotypes implicates these bases, making sexual orientation andgender identity discrimination indirectly actionable under Title VII.(81) Satisfying the duty to search could give hiring officials access toinformation regarding applicants' personal lives--such as theirsexual orientation, age, pregnancy, religion, or national origin--thatmay not be apparent during a job interview. An employer that takes anyof these details into account while making a hiring decision risksliability under Title VII or the ADEA.

2. State and Local Antidiscrimination Laws

Many states and the District of Columbia prohibit discrimination onbases that federal law does not explicitly recognize, such as sexualorientation, marital status, parental status, and familyresponsibilities. (82) The District of Columbia'santidiscrimination law is especially broad; in addition to prohibitingemployers from considering an applicant's sexual orientation andgender identity, it forbids discrimination based on familyresponsibilities, personal appearance, marital status, politicalaffiliation, and college enrollment status. (83) Some municipalitieshave also passed ordinances that enumerate even more protected basesthan state and federal statutes. (84) In addition to broadening thesubstantive scope of antidiscrimination law, many state and local lawsprotect more job seekers from discrimination on the same bases asfederal law by lowering the threshold for employer inclusion. Asexplained above, federal antidiscrimination statutes generally do notapply to employers that employ fewer than fifteen individuals, (85) butstate and local laws often reduce this requirement. (86) These state andlocal provisions combine to create a veritable minefield of liabilityrisks for employers that attempt to fulfill their duty to search.

B. State Statutory Protection for Off-Duty Conduct

When employers investigate potential employees via the Internet, agrowing number also risk violating state statutes that prohibitemployers from making employment decisions based on applicants'off-duty conduct. (87) Although some of these statutes apply exclusivelyto current employees, (88) many off-duty conduct laws explicitly protectjob seekers as well. (89) Off-duty conduct statutes range from extremelybroad laws that prohibit hiring officials from considering any nonworkactivities to narrower laws that forbid employers from considering onlycertain types of off-duty conduct. The text of California's statuteoffers the most sweeping protection to job applicants: it prohibitsemployers from refusing to hire applicants based on any of their outsideactivities. (90) Furthermore, unlike similar laws from other states,(91) California's law does not contain any exceptions, such asprovisions that safeguard employers' business needs. (92)California's courts have attempted to narrow the statute'ssweeping scope, especially in the private employment context, (93) butthe law, like other states' more narrowly drawn statutes, remains apotential source of liability for employers that learn aboutapplicants' off-duty activities via the Internet.

One particularly relevant group of off-duty conduct statutesprohibits employers from considering candidates' off-duty use oflawful products, such as cigarettes and alcoholic beverages. (94) As ofMay 2008, seventeen states had enacted statutes forbidding employersfrom making employment decisions based on tobacco use, and eight statesprotected the use of all lawful products. (95) Although these statutesarose in the 1990s as a way to protect smokers from employmentdiscrimination, (96) their applicability to alcohol use may beespecially pertinent to employers that conduct pre-employment Internetscreening. Career advice websites warn job seekers that evidence ofalcohol use may drive employers to ignore their applications. (97)Furthermore, one survey found that 58 percent of hiring officials hadrejected an applicant because an Internet search prompted"[c]oncerns about the candidate's lifestyle," whichpresumably encompasses the applicant's lawful alcohol consumption.(98) Another study discovered that, of the employers that had rejected acandidate because of his or her social networking content, 44 percentmade their decision because they learned that the applicant drankalcohol or used other drugs. (99) Employers whose Internet screeningleads them to eliminate applicants based on their alcohol use could faceliability under an off-duty conduct statute that forbids hiringofficials from considering this factor.

C. Invasion of Privacy Torts

Pre-employment Internet screening also exposes employers tononstatutory liability risks. The common law offers four tort actions toredress invasions of privacy: intrusion upon seclusion, appropriation ofname or likeness, publicity given to private life, and false light.(100) Unlike the statutory causes of action discussed in Part II.A.1,invasion of privacy torts do not limit potential plaintiffs by excludingcertain employers from liability. Therefore, these torts ensure that noemployer is truly insulated from screening-related litigation. Althoughjob applicants typically enjoy fewer privacy protections than currentemployees, (101) at least one court has held that employees andapplicants are entitled to equal privacy rights. (102) Employers shouldnot expect that a job seeker's nonemployee status will shield theorganization from privacy tort litigation.

Of the four common law invasion of privacy torts, most plaintiffsturn to intrusion upon seclusion to redress privacy violations in theemployment context. (103) The Restatement (Second) of Torts provides thefollowing standard definition of intrusion upon seclusion: "One whointentionally intrudes, physically or otherwise, upon the solitude orseclusion of another or his private affairs or concerns, is subject toliability to the other for invasion of his privacy, if the intrusionwould be highly offensive to a reasonable person." (104) For apotential plaintiff bringing a cause of action based on preemploymentInternet screening, the most difficult element of this analysis isdemonstrating that the intrusion is "highly offensive to areasonable person," especially in light of the fact that theinformation that employers discover via the Internet is oftenself-published and publicly available. (105) Consequently, there are atleast two situations in which an Internet search could give rise to aviable intrusion upon seclusion claim. First, the employer couldcircumvent a password or some other restriction intended to limitindividuals' access to the online information. Courts have heldthat entering an employee's password-protected account withoutpermission could be highly offensive to a reasonable person, and thereis no reason to suspect that courts would not make the same finding whenthe plaintiff is a job applicant. (106) Second, the employer could"friend" the applicant via a social networking site, therebygaining access to the applicant's profile information via a modicumof deception. (107) Recognizing this liability risk, some commentatorshave counseled employers aiming to protect themselves from litigation toeschew "friending" job seekers. (108) Employers could make acolorable argument that potential employees consent to any intrusionwhen they accept the "friend" request, and consent is anabsolute defense to intrusion upon seclusion. (109) However, even thoughthis loophole may provide a way for some employers to avoid liability,invasion of privacy torts remain a potential source of litigation foremployers that attempt to fulfill their duty to search.

III. THE SOLUTION: PRESUMPTIONS, GUIDELINES, AND THEAPPLICANT'S ROLE

Negligent hiring serves the important public policy goal ofprotecting individuals from workplace violence and other ills. (110)However, as the above discussion illustrates, the current state of thelaw creates a conundrum for diligent employers. On one hand, negligenthiring provides employers with a duty to investigate applicants'backgrounds, which includes a duty to search the Internet. (111) Thisduty to search is compounded by the unavailability of employmentreferences, which previous employers are hesitant to provide due toconcerns about defamation lawsuits. (112) On the other hand, performingthese required online searches exposes employers to litigation allegingdiscrimination, violation of off-duty conduct statutes, and invasion ofprivacy. (113) Eliminating this Catch22 requires a three-pronged attack:state legislatures should pass statutory presumptions against negligenthiring, employers that want to perform pre-employment Internet screeningshould institute policies for carrying out these searches, and jobseekers should carefully monitor their online personas so that they haveno reason to fear an employer that conducts Internet screening.

A. Statutory Presumptions Against Negligent Hiring

State legislatures can resolve the conflict between negligenthiring and the sources of liability outlined in Part II by enactingstatutory presumptions against negligent hiring. (114) Courts haverepeatedly viewed a clean background check as an indicator that theconduct that gave rise to a negligent hiring lawsuit was not reasonablyforeseeable. (115) By codifying this standard, states can ensure thatemployers will not feel pressured to engage in preventativemeasures--such as Internet screening--that expose them to additionallitigation. Two states have created statutory presumptions in favor ofemployers that perform minimal due diligence. (116) Rather thanproviding a simple way to circumvent negligent hiring liability, futurestatutes should outline a series of required screening measures. Bygoing through the motions necessary to insulate themselves fromnegligent hiring lawsuits, hiring officials will ultimately learnwhether applicants are hazardous to others and will avoid unwise hiringchoices. The proposed statute--which has been included as the Appendixof this Note--will consequently benefit employers, many job seekers andexisting employees, (117) and any third parties who come into contactwith new employees.

1. Proposed Statute

Foreseeability and reasonable investigation are the cornerstones ofnegligent hiring law. (118) However, the negligent hiring doctrinecurrently provides no clear guide for determining whether anemployee's dangerous behavior is foreseeable and what level ofinvestigation is reasonable. (119) This ambiguity may encourageemployers to over-investigate job applicants' backgrounds, whichincludes conducting pre-employment Internet screening. (120) Theonline-screening dilemma therefore stems from an easily correctableproblem: employers do not know how much due diligence is sufficient. Byclearly delineating the steps that employers need to complete in orderto meet their screening obligations, states can nullify the troublesomeduty to search.

Case law provides hints regarding which pre-employment measures anemployer must complete in order to ensure that a candidate has noforeseeable dangerous propensities. The first of these measures isconducting a criminal background check to the extent that state lawallows (121) or requires. (122) As discussed above, some courts haveheld that investigating an applicant's criminal history is oneelement of the due diligence that negligent hiring doctrine requires.(123) However, courts have also emphasized that a clean criminalbackground check alone is not sufficient to render an employee'sdangerous tendencies unforeseeable. (124) The Virginia Supreme Courthighlighted two additional pre-employment screening measures when itruled in favor of the employer in Southeast Apartments Management v.Jackman: requiring the candidate to fill out a detailed job applicationthat inquires about his or her prior convictions and making a reasonableeffort to contact the prospective employee's references andprevious employers. (125) The employer in that case had also interviewedthe employee in question two times before hiring him. (126) Other courtshave mentioned these four steps as well, suggesting that they are thekey indicators of foreseeability and reasonable investigation. (127)Consequently, in order for employers to enjoy the statutory presumptionin their favor, the proposed statute requires that they investigate theapplicant's criminal history, have the applicant complete adetailed employment application, make a good faith effort to contact theapplicant's references and previous employers, and interview theapplicant. (128)

Of course, not all positions warrant the same degree of duediligence. For example, an employer should exercise more care whenhiring an employee who will regularly interact with the public than whenhiring an employee for a position that involves minimal human contact.(129) Therefore, although the ideal statute should encourage allemployers to conduct these baseline steps, it should demand more ofemployers that place employees in more sensitive positions. Two casesfrom opposite ends of the United States illustrate this sliding scale.In Welsh Manufacturing, Division of Textron, Inc. v. Pinkerton's,Inc., the Supreme Court of Rhode Island held that an employer hiring asecurity guard to protect valuable property had a duty to conduct a verythorough inquiry into the applicant's background, character, andqualifications. (130) In contrast, the Supreme Court of Hawaii suggestedthat the employer should be held to a much lower standard when theemployee in question was a chef on a cruise ship and did not regularlyinteract with the ship's passengers. (131) An employee whosebackground information renders him or her unsuitable for the securityguard position will often be able to accept the chef position withoutexposing his or her employer to negligent hiring liability.

The proposed statute incorporates this sliding scale by requiringemployers to investigate job seekers' employment histories for a"reasonable time period prior to the prospective employee[s']application[s]" and by specifying that employers should considerapplicants' criminal histories in relation to the positions forwhich they apply. (132) Furthermore, the fact that the proposed statuteis a presumption against negligent hiring rather than a complete defenseallows some additional flexibility. In extreme circ*mstances, aplaintiff will be able to rebut the presumption by demonstrating thatthe position is so sensitive that the employer should have completedscreening measures beyond the procedures outlined in the model statute.Although enacting a statutory presumption rather than an affirmativedefense allows some lingering ambiguity in the definition of"reasonable investigation," this elasticity will ensure thatcourts can adapt their negligent hiring analyses to the particularemployment at issue.

One category of job seekers that will likely warrant additionalpre-employment scrutiny is individuals who apply for financiallysensitive positions, such as accountants and bank tellers. For theseapplicants, a credit check may be a better indicator of suitability foremployment than a criminal background check. Consequently, subsection(A)(5) of the proposed statute requires employers to run credit checksfor applicants who will have access to third parties' funds. (133)In White v. Consolidated Planning, Inc., a North Carolina appeals courtheld that an employer could be liable for negligent hiring when a thirdparty suffered economic, rather than physical, harm. (134) In that case,an employee at a financial planning firm embezzled a customer'smoney for gambling purposes. (135) The court denied the employer'smotion to dismiss, noting that the employee's actions wereforeseeable in part because his prior employer had fired him forstealing. (136) The court found that the plaintiff could make acolorable argument that the employer would have discovered theemployee's financial problems if it had conducted a"reasonable investigation," (137) which presumably would haveincluded reference and credit report checks. White suggests that, inaddition to investigating potential employees' criminal andemployment backgrounds, these types of employers should investigateapplicants' financial health. (138)

One obvious argument against encouraging employers to investigatecandidates' criminal backgrounds as a method of preemploymentscreening is that doing so amounts to state-sanctioned discriminationagainst ex-offenders. (139) In order to promote the hiring ofindividuals with prior convictions, scholars have called for statutesthat prohibit employment discrimination based on applicants'criminal records when the convictions would not inhibit their abilitiesto perform their job functions. (140) Some state laws already govern howemployers can use conviction information in hiring decisions, (141) andboth the EEOC and many courts have interpreted Title VII to prohibitblanket policies against hiring ex-convicts. (142) In order to furtherthe public policy in favor of providing ex-offenders with employmentopportunities, subsection (B) of the proposed statute incorporates aprovision that prohibits employers from making hiring decisions based onan applicant's criminal record unless the prior convictionindicates that the applicant is somehow unsuited for the position. (143)

2. The Shortfalls of Existing Law

To date, two states have adopted general statutory presumptionsagainst negligent hiring: Florida and Louisiana. Unlike this Note'sproposed statute, these laws provide liability protection to employerswho complete only one pre-employment screening step. Therefore, althoughthese laws combat the Catch-22 that arises from negligent hiring byeliminating the duty to search, they do not require enough preventativemeasures to adequately safeguard third parties. Furthermore, neither lawbuilds in a provision that clearly prohibits unnecessary discriminationon the basis of applicants' criminal histories.

Florida's negligent hiring law provides a list ofpre-employment screening measures. (144) If the employer completes oneof the enumerated tasks and does not discover "any information thatreasonably demonstrate[s] the unsuitability of the prospective employeefor the particular work to be performed," the statute allows apresumption in favor of the employer in a negligent hiring actionarising out of the employee's intentional tort. (145) Theemployer's screening options include conducting a criminalbackground check via the Florida Crime Information Center, making areasonable effort to contact the applicant's references and formeremployers, requiring the applicant to fill out a job application thatasks questions regarding his or her criminal history, checking theapplicant's driver's license record if the record is relevantto the work that employee will perform, or interviewing the potentialemployee. (146) Although Florida's legislature has unsuccessfullyattempted to amend the existing law to require employers to take all ofthese preventative steps before they can enjoy the statutory presumptionin their favor, (147) the current statute remains flawed due it its useof "or" rather than "and." (148) The model statuteimproves upon Florida's attempt to solve negligent hiring'sCatch-22 by inserting the proper conjunction and thereby heightening therequired degree of due diligence.

In addition to failing to require proper pre-employment screening,Florida's statute does not go far enough to prevent employers fromdiscriminating against applicants with criminal histories. (149)Florida's statute indirectly promotes the hiring of ex-offenders bylisting its elements in the alternative and, consequently, allowingemployers to escape negligent hiring liability without inquiring into acandidate's criminal history. (150) The statute reinforces thispoint by specifying that "[t]he election by an employer not toconduct the [criminal background] investigation ... does not raise anypresumption that the employer failed to use reasonable care in hiring anemployee." (151) Although at least one commentator has encouragedstate legislatures to pass laws similar to Florida's presentstatute in order to encourage employers to hire individuals withcriminal records, (152) the proposed statute enhances Florida'sapproach by combining an appropriate level of due diligence withprotection against discrimination. (153)

Louisiana's negligent hiring law suffers from similarshortcomings. Like Florida's statute, Louisiana Revised Statutessection 23:291 creates a presumption that the employer was not negligentif it completed one of two enumerated pre-employment screening measures.(154) To enjoy the presumption in its favor, the employer mustreasonably rely on information that the employee's previousemployer provided or conduct a criminal background check. (155) Toencourage previous employers to provide substantive employmentreferences, the statute couples its negligent hiring presumption with aclause that protects previous employers from liability when they givereferences in good faith. (156) As discussed above, these provisionsrarely succeed in quelling employers' fears regarding defamationlitigation and eliciting worthwhile references. (157) The statutetherefore drives employers that want to circumvent negligent hiringliability and perform meaningful due diligence toward conductingcriminal history investigations. However, Louisiana's statute doesnot contain any language that discourages employers from makingemployment decisions based on individuals' criminal histories.(158) Here again, this Note's proposed statute improves uponLouisiana's law by providing more meaningful guidelines foremployers and safeguarding ex-offenders from unnecessary discrimination.

3. Employers' Concerns

Although the proposed statute benefits employers by outlining clearpre-employment screening guidelines and providing a shield fromnegligent hiring liability, fulfilling the statute's requirementsmay entail incurring increased screening costs. Employers shouldremember that complying with the statute is optional: if employerschoose not to complete the statute's steps, they will simply runthe same risk of negligent hiring liability that they face today.However, for some employers, satisfying the statute's prerequisitesmay actually decrease screening costs. Under the current negligenthiring regime, cautious employers may feel the need to over-screenapplicants in order to avoid negligent hiring liability. (159) Theproposed statute and its clearly delineated screening requirements willallow employers to eliminate these redundant steps.

B. Employee Selection Guidelines

Even after states implement the proposed statute and eliminate theduty to search, some employers may still feel compelled to investigatejob seekers via the Internet. After all, the Internet is a quick, easy,cost-effective way to find out more information about anapplicant's background and to ascertain whether he or she will be agood fit for an employer's business. Furthermore, some positionsmay be so highly sensitive that the employer must conduct an Internetsearch as part of its reasonable background investigation. (160) PartII's discussion of the ways in which spurned candidates may holdtheir potential employers liable for pre-employment Internet screeningsuggests some ways in which employers can reduce the likelihood ofsuccessful lawsuits. By creating and following well-crafted policiesgoverning online screening, employers can enjoy the benefits of Internetinvestigations while minimizing their hazards.

As suggested above, discrimination and off-duty conduct laws varywildly among states and localities. (161) Therefore, before creatingonline screening policies, employers should familiarize themselves withthe applicable laws--including statutes that prohibit employers fromdiscriminating against ex-offenders--to ascertain what information theycan consider while making hiring decisions. To minimize the likelihoodof liability, employers should designate a non-decision maker who willconduct any online searches. (162) If this individual relays findingsthat are pertinent to the hiring decision and filters out data that thehiring official cannot consider, the employer will decrease thelikelihood that it will learn and utilize information that may subjectit to liability. The person conducting the investigation should alsodocument each search and keep a record of the search terms that he orshe used. (163) By maintaining this information, the employer augmentsits ability to prove that its Internet searches could not have led toillegal hiring decisions. (164) Furthermore, documenting the fact thatthe online searches did not reveal that the applicant possessed anydangerous propensities may provide the employer with additionalammunition with which to defend itself against future negligent hiringlawsuits in a state that does not adopt the proposed statute. (165)

Although asking a non-decision maker to conduct any Internetsearches reduces the likelihood that an employer will violateantidiscrimination or off-duty conduct statutes, it does not hinder ajob seeker's ability to bring a viable intrusion upon seclusionclaim. (166) In order to avoid tort liability for invasion of privacy,employers should refrain from "friending" job applicants orcircumventing privacy protections, such as passwords. (167) Consent isan absolute defense to intrusion upon seclusion, (168) so prudentemployers should obtain the job seeker's written permission beforeconducting any online searches. Seeking the applicant's consent hasthe added benefit of informing him or her about the searches from theoutset, thereby dispelling the atmosphere of distrust and resentmentthat may erupt if the job seeker learns about the online investigationon his or her own. (169)

C. The Applicant's Role

A natural counterargument to these employer-focused solutions--theproposed statute and the suggested guidelines--is that the applicantshould bear the burden of maintaining an Internet persona that isworkplace-friendly. If an employer makes a negative hiring decisionbased on inappropriate information that a candidate has voluntarilyshared on the Internet, the candidate should accept the consequences,unpleasant though they may be. This outlook, although reasonable on itsface, presents two key problems. First, although employees should remainmindful of the ramifications of their online behavior, they cannotalways guarantee that the information associated with their namesaccurately reflects their activities and views. (170) Second, theprotections for privacy, anti-discrimination, and off-duty conductdescribed above evince a public policy in favor of allowing employeessome degree of separation between their personal and professional lives.(171) Significantly, applicants may increasingly view the Internet as ajob-seeking tool. (172) In a world in which the Internet is just anotherway for candidates to market themselves to employers, (173) anindividual is unlikely to allow his or her online presence to become away for employers to find out damaging facts about the person behind theresume. If this trend continues, it may render the duty to searchpractically moot.

CONCLUSION

The Internet provides employers with an extraordinary new way toevaluate job applicants. However, it also pegs employers between a rockand a hard place. An employer that fails to conduct pre-employmentInternet screening risks negligent hiring claims, but an employer thatperforms this due diligence faces a litany of other potential lawsuits.Employers can mitigate this problem by fashioning internal policies foronline screening, and job seekers can control their online personas tosome degree. But the power to end the online screening tug-of-war trulyrests with the state legislatures

APPENDIX

(A) In a civil action for negligent hiring, an employer thatcompleted a reasonable background investigation prior to hiring theemployee who allegedly caused the harm at issue will be presumed not tohave been negligent in hiring that employee if the backgroundinvestigation did not demonstrate that the employee was unsuitable forthe particular employment. A reasonable background investigation mustinclude the following:

(1) Conducting an investigation of the prospective employee'scriminal background to the extent required by state law. If state lawdoes not provide a requirement, the employer must obtain a criminalconviction history report from the state's law enforcementdepartment.

(2) Requiring the prospective employee to complete a detailed jobapplication that includes the following:

(a) A request for the names of the prospective employee's pastemployers and dates of prior employment, spanning a reasonable timeperiod prior to the prospective employee's application, and arequest for the addresses and telephone numbers of these past employers.

(b) A request for a detailed history of the prospectiveemployee's criminal convictions, including the type of crime, thedate of conviction, and the penalty imposed.

(3) Making a reasonable effort to contact the prospectiveemployee's references and former employers concerning theprospective employee's suitability for the particular employmentand the accuracy of the prospective employee's application.

(4) Interviewing the prospective employee.

(5) Checking the prospective employee's credit history inaccordance with the standards imposed by the Fair Credit Reporting Actand state law if the position for which the employer hired theprospective employee provided the prospective employee with significantaccess to and control over the funds or assets of customers, clients, orother third parties.

(B) No employer shall deny an application for employment becausethe prospective employee has been convicted of a criminal offense unlessthere is a direct relationship between the prior conviction and theposition for which the prospective employee applied that renders theprospective employee unsuitable for the particular employment.

(1.) See Peter Vogt, Keep Your E-Image Clean, MONSTER,http://career-advice.monster.com/job-search/Getting-Started]Keep-Your-E-Image-Clean/article.aspx (last visited Jan. 13,2012); see also Press Release, CareerBuilder.com, Forty-Five Percent ofEmployers Use Social Networking Sites to Research Job Candidates,CareerBuilder Survey Finds (Aug. 19, 2009), available athttp://www.careerbuilder.com/share/aboutus]pressreleasesdetail.aspx?id=pr519&sd=8%2f19%2f2009&ed=12%2f31%2f2009.

(2.) In some cases, employers delegate the task of scouring theInternet to companies such as Social Intelligence, which combs the webon employers' behalves. Jennifer Waters, Facebook Is Fun forRecruiters, Too, WALL ST. J., July 24, 2011,http://online.wsj.com/article/SB10001424053111903461104576464823762727188.html. In mid-2011, theFederal Trade Commission declined to rule that engaging these companiesto conduct Internet searches violated the Fair Credit Reporting Act(FCRA), which regulates third parties that conduct pre-employmentscreening. See Letter from Maneesha Mithal, Assoc. Dir., Div. of Privacy& Identity Prot., Bureau of Consumer Prot., Fed. Trade Comm'n,to Renee Jackson, Nixon Peabody LLP (May 9, 2011), available athttp://www.ftc.gov/os/closings/110509social intelligenceletter.pdf. Foran overview of the FCRA's application to the employment screeningprocess, see BUREAU OF CONSUMER PROT., USING CONSUMER REPORTS: WHATEMPLOYERS NEED TO KNOW (Mar. 1999), available athttp://business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know.

(3.) CROSS-TAB, ONLINE REPUTATION IN A CONNECTED WORLD 8 (2010),available at http://go.microsoft.com/?linkid=9709510.

(4.) Id. at 3.

(5.) Press Release, CareerBuilder.com, supra note 1. Additionally,the percentage of hiring officials who made use of social networkingsites during the hiring process increased between 2008 and 2009, whichfurther suggests an upward trend. See id.

(6.) See Vogt, supra note 1.

(7.) More than 500 million individuals have created Facebookprofiles. Kristin McGrath, Status Update: Facebook Logs 500 MillionMembers, USA TODAY, July 22, 2010, at 3D. In 2010, Facebook surpassedGoogle as the Internet's most visited website. Press Release,Experian Hitwise, Facebook Was the Top Search Term in 2010 for theSecond Straight Year (Dec. 29, 2010), available athttp://www.hitwise.com/us/about-us/press-center/press-releases/facebook-was-the-top-search-term-in-2010-for-sec/. Furthermore,Twitter--a website that allows its users to share 140-character missiveswith other individuals--has amassed nearly 160 million members over thepast two years. Claire Cain Miller & Tanzina Vega, After Building aHuge Audience, Twitter Turns to Ads to Cash In, N.Y. TIMES, Oct. 11,2010, at B1.

(8.) Daniel E. Mooney, Comment, Employer on the Web Wire: Balancingthe Legal Pros and Cons of Online Employee Screening, 46 IDAHO L. REV.733, 758 (2010).

(9.) See infra Part I.B.

(10.) See discussion infra Part I.B.

(11.) See infra Part II.

(12.) See Jonathan Bick, Lawful Mining of Social Networks, 195N.J.L.J. 443 (2009); Robert Sprague, Googling Job Applicants:Incorporating Personal Information into Hiring Decisions, 23 LAB. LAW.19 (2007) [hereinafter Sprague, Googling Job Applicants]; RobertSprague, Rethinking Information Privacy in an Age of OnlineTransparency, 25 HOFSTRA LAB. & EMP. L.J. 395 (2008) [hereinafterSprague, Rethinking Information Privacy]; Mooney, supra note 8.

(13.) See, e.g., sources cited infra note 53.

(14.) See Mooney, supra note 8. In addition to the causes of actionthat this Note discusses, public employers that investigate jobapplicants via the Internet may face liability under variousconstitutional causes of action. See id. at 742-52.

(15.) See infra Part I.A.

(16.) See infra Part I.B.

(17.) See Nichols v. Pray, Walker, Jackman, Williamson &Marler, P.C., 144 P.3d 907, 912 (Okla. Civ. App. 2006).

(18.) See Deborah A. Ballam, Employment References--Speak No Evil,Hear No Evil: A Proposal for Meaningful Reform, 39 AM. BUS. L.J. 445,447 (2002); Christopher Graham, Legislative Review, H.B. 2274:Encouraging Employment References, 30 ARIZ. ST. L.J. 221, 224 (1998).

(19.) Ballam, supra note 18, at 448.

(20.) See Thomas A. Jacobson, Avoiding Claims of Defamation in theWorkplace, 72 N.D. L. REV. 247, 265 (1996) (advising employers seekingto avoid defamation lawsuits to "[d]isclose only dates ofemployment, positions held, and wage/salary information, or keepdiscussions with prospective employers limited to other verifiable andobjective facts").

(21.) See, e.g., Stuempges v. Parke, Davis & Co., 297 N.W.2d252, 255-56 (Minn. 1980) (upholding the jury's verdict in favor ofthe plaintiff salesperson when his previous employer falsely told anemployment agency that he was "not industrious and that he wasfired because he sold on friendship, would not get products out, washard to motivate and could not sell").

(22.) See Terry Ann Halbert & Lewis Maltby, Reference CheckGridlock: A Proposal For Escape, 2 EMP. RTS. & EMP. POL'Y J.395, 404 (1998).

(23.) Stuempges, 297 N.W.2d at 255 ("In order for a statementto be considered defamatory it must be communicated to someone otherthan the plaintiff, it must be false, and it must tend to harm theplaintiffs reputation and to lower him in the estimation of thecommunity."); RESTATEMENT (SECOND) OF TORTS [section][section]558(a), 581A (1977).

(24.) See Pamela G. Posey, Note, Employer Defamation: The Role ofQualified Privilege, 30 WM. & MARY L. REV. 469, 471 (1989)("Employers enjoy a qualified privilege when discussing mostmatters related to employment with individuals having a correspondinginterest or duty."); see also RESTATEMENT (SECOND) OF TORTS[section] 595(1). For a discussion of the differing ways in which courtshave approached the issue of qualified privilege in the employmentreference context, see Posey, supra, at 484-87.

(25.) Posey, supra note 24, at 487.

(26.) Ballam, supra note 18, at 446-47 ("Lawmakers in overhalf of the states have provided some sort of statutory immunity foremployers giving references and such legislation is pending in most ofthe remaining states.").

(27.) Id. at 447-48.

(28.) See supra note 7 and accompanying text.

(29.) RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 432 (9th ed.2008).

(30.) Bagent v. Blessing Care Corp., 862 N.E.2d 985, 991 (Ill.2007) ("Indeed, the employer's vicarious liability extends tothe negligent, willful, malicious, or even criminal acts of itsemployees when such acts are committed within the scope of theemployment.").

(31.) RESTATEMENT (SECOND) Ofa*gENCY [section] 219(1) (1958).

(32.) Id. [section] 228(2).

(33.) See Mooney, supra note 8, at 738.

(34.) Third parties can also bring other causes of action--such asnegligent retention, negligent supervision, and negligent training--tohold employers accountable for their employees' behavior. However,these torts also examine employers' post-hiring actions andconsequently fall outside the scope of this Note. For more informationabout employer negligence, see generally RONALD M. GREEN & RICHARDJ. REIBSTEIN, EMPLOYER'S GUIDE TO WORKPLACE TORTS 3-36 (1992).

(35.) Courts in every state and the District of Columbia haveacknowledged the existence of a negligent hiring cause of action,although negligent hiring remains underdeveloped in North Dakota, SouthDakota, and Vermont due to the dearth of cases brought under that theoryin those states. See Lex K. Larson, State-by-State Analysis, EmploymentScreening (MB) pt. 1, ch. 11 (2010).

(36.) See Schecter v. Merchants Home Delivery, Inc., 892 A.2d 415,432 (D.C. 2006) (holding that the employees' actions fell outsidethe scope of their employment but allowing the case to go before a juryon the issue of negligent hiring).

(37.) See Monique C. Lillard, Their Servants' Keepers:Examining Employer Liability for the Crimes and Bad Acts of Employees,43 IDAHO L. REV. 709, 725 (2007); see also RESTATEMENT (SECOND) OF TORTS[section] 317 (1965).

(38.) See Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 911 (Minn.1983) ("[A]n employer has the duty to exercise reasonable care inview of all the circ*mstances in hiring individuals who, because of theemployment, may pose a threat of injury to members of thepublic."); RESTATEMENT (SECOND) OF AGENCY [section] 213 (1958)("A person conducting an activity through servants or other agentsis subject to liability for harm resulting from his conduct if he isnegligent or reckless ... in the employment of improper persons orinstrumentalities in work involving risk of harm to others.").

(39.) See Ponticas, 331 N.W.2d at 911-12.

(40.) 596 S.E.2d 604, 605 (Ga. 2004) (emphasis added).

(41.) See CSX Transp., Inc. v. Pyramid Stone Indus., Inc., No.08-12694, 2008 WL 4239373, at *2 (11th Cir. Sept. 17, 2008).

(42.) See supra text accompanying note 40.

(43.) See, e.g., Nancy B. Sasser, Comment, "Don't Ask,Don't Tell": Negligent Hiring Law in Virginia and theNecessity of Legislation to Protect Ex-Convicts from EmploymentDiscrimination, 41 U. RICH. L. REV. 1063, 1077-78 (2007) (explainingthat, unlike Virginia, Minnesota does not explicitly "condition theemployer's liability on strict foreseeability").

(44.) 331 N.W.2d at 912.

(45.) Id. at 911 (emphasis added).

(46.) Id. at 912-13.

(47.) Id. at 913.

(48.) Id. at 909.

(49.) Id. at 913.

(50.) Id. at 909, 914. The Ponticas court emphasized that theemployee's criminal history alone did not lead it to conclude thatthe employee's dangerous actions were foreseeable. Id. at 913("Liability of an employer is not to be predicated solely onfailure to investigate criminal history of an applicant, but rather, inthe totality of the circ*mstances surrounding the hiring, whether theemployer exercised reasonable care.").

(51.) Id. at 914-15.

(52.) Id.

(53.) See, e.g., Brian Elzweig & Donna K. Peeples, Using SocialNetworking Web Sites in Hiring and Retention Decisions, SAMADVANCEDMGMT. J., Autumn 2009, at 27, 27; Peter J. Tanella, Should Your CompanyImplement a Social Networking Policy?, VIEW FROM BAR (MandelbaumSalsburg, West Orange, N.J.), Fall 2010, at 4, 6 (on file with author);see also sources cited infra note 58.

(54.) Although a case involving negligent hiring and pre-employmentInternet screening has not been litigated, plaintiffs have brought othercauses of action based on online screening. For example, the Court ofAppeals for the Federal Circuit held that a federal employer couldterminate an employee based on what it discovered via a Google search.See Mullins v. Dep't of Commerce, No. 06-3284, 2007 WL 1302152, at*2-3 (Fed. Cir. May 4, 2007).

(55.) See, e.g., Saine v. Comcast Cablevision of Ark., Inc., 126S.W.3d 339, 345 (Ark. 2003) (holding that the employer was not negligentbecause it had conducted an "adequate backgroundcheck"--including screening for drug use and contacting theemployee's previous employers--and nothing in the employee'sbackground suggested that he was predisposed to commit sexual assault);Munroe v. Universal Health Servs., Inc., 596 S.E.2d 604, 608 (Ga. 2004)(finding that an employer did not breach its duty of care because ithired an outside agency to investigate an employee's criminalhistory and the background check did not indicate that the employee wasdangerous); Burnett v. C.B.A. Sec. Serv., Inc., 820 P.2d 750, 752 (Nev.1991) ("The tort of negligent hiring imposes a general duty on theemployer to conduct a reasonable background check on a potentialemployee to ensure that the employee is fit for the position.").

(56.) See Se. Apts. Mgmt. Inc. v. Jackman, 513 S.E.2d 395, 397-98(Va. 1999) (holding that the employer was not liable for anemployee's actions when running a criminal background check wouldnot have uncovered any relevant criminal history and the employee didnot disclose any pertinent crimes on an application that requested adetailed conviction history).

(57.) Courts have taken the ease of completing elements of abackground investigation into account when determining whether anemployer's failure to perform these steps constituted negligence.See, e.g., Cramer v. Hous. Opportunities Comm'n, 501 A.2d 35, 41(Md. 1985) ("[E]vidence of the ready availability of criminalrecord information was relevant to the initial consideration ofnegligence."); supra text accompanying note 52.

(58.) Other commentators have reached similar conclusions regardingnegligent hiring and the duty to search the Internet. See, e.g., Bick,supra note 12; Sprague, Googling Job Applicants, supra note 12, at 27;Sprague, Rethinking Information Privacy, supra note 12, at 398-99;Mooney, supra note 8, at 737 ("The law is undeveloped in this area,but the easy access and low cost of Internet screening an applicant andthe salient information it can reveal supports the argument that theemployer not only benefits from such a search but may even have a legalduty to perform such a search."); see also sources cited supra note53.

(59.) See infra Part II.A-B.

(60.) See infra Part II.C.

(61.) See infra Part II.A.1-2.

(62.) See supra text accompanying note 53; see also supra note 58and accompanying text.

(63.) See Dave Marcus & Patricia Kitchen, In Job Search, OnlineImage Counts, NEWSDAY, July 23, 2010, at A42, available at 2010 WLNR14690452.

(64.) CROSS-TAB, supra note 3, at 9.

(65.) Marcus & Kitchen, supra note 63.

(66.) See infra text accompanying note 67. Diabetes can qualify asa disability under the ADA. See Questions and Answers About Diabetes inthe Workplace and the Americans with Disabilities Act (ADA), U.S. EQUALEMP'T OPPORTUNITY COMM'N, http://www.eeoc.gov/facts/diabetes.html (last updated Feb. 2, 2011).

(67.) 42 U.S.C. [section][section] 12111(5)(A), 12112 (2006).

(68.) See 42 U.S.C. [section] 12102 (Supp. III 2010).

(69.) See id. [section] 12102(1)(A), (2)(A).

(70.) Coincidentally, after she published unflattering commentsabout her then-employer, Armstrong became one of the first bloggers tolose her job due to her website. The incident spawned the slang term"dooced," a verb that refers to being fired because of onlineinformation. See Amy Joyce, Free Expression Can Be Costly when BloggersBad-Mouth Jobs, WASH. POST, Feb. 11, 2005, at A1.

(71.) See, e.g., Heather Armstrong, Heather, Interrupted, DOOCE.COM(Aug. 26, 2004), http://www.dooce.com/archives/daily/08_26_2004.html.

(72.) See Calero-Cerezo v. Dep't of Justice, 355 F.3d 6, 22(1st Cir. 2004) (holding that major depression can qualify as adisability).

(73.) See supra text accompanying note 67.

(74.) See Padilla v. Buffalo State Coll. Found., Inc., 958 F. Supp.124, 128 (W.D.N.Y. 1997) (finding that a job applicant raised issues ofmaterial fact precluding the employer's motion for summary judgmentwhen the employer allegedly withdrew a job offer because theapplicant's child was disabled).

(75.) 42 U.S.C. [section][section] 2000e(b) (2006); 2000ff-1 (Supp.III 2010).

(76.) See Stephanie Reitz, Conn. Woman Alleges GeneticDiscrimination at Work, ASSOCIATED PRESS FIN. WIRE, Apr. 28, 2010,available at http://seattletimes.nwsource.com/html/businesstechnology/2011723744_apusgeneticdiscriminationclaim.html.The Equal Employment Opportunity Commission's (EEOC) GINAregulations indicate that employers would not violate the law if theycame across genetic information while conducting a routine Internetsearch, as long as they did not intend to uncover genetic informationand did not require special permission to view the website in question.See Genetic Information Nondiscrimination Act of 2008, 29 C.F.R. pt.1635 (2011). The regulations are likely an instructive guide fordetermining how courts will approach GINA in the online screeningcontext.

(77.) 29 U.S.C. [section][section] 623, 630(b), 631 (2006).

(78.) 42 U.S.C. [section][section] 2000e(b), 2000e-2. TheImmigration Reform and Control Act (IRCA) protects additional employeesfrom national origin discrimination by prohibiting businesses thatemploy between three and fourteen individuals from discriminating onthat basis. See 8 U.S.C. [section] 1324b(a). The IRCA also forbidsemployers from discriminating against certain applicants due to theircitizenship status. Id.

(79.) 42 U.S.C. [section] 2000e.

(80.) See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989).

(81.) These so-called "bootstrapping" causes of actionhave enjoyed mixed success. Compare Smith v. City of Salem, 378 F.3d566, 572 (6th Cir. 2004) (holding that the transsexual plaintiff hadstated a claim of sex discrimination when he alleged that his employerhad discriminated against him because he did not behave like astereotypical man), with Vickers v. Fairfield Med. Ctr., 453 F.3d 757,763 (6th Cir. 2006) ("[T]he harassment of which Vickers complainsis more properly viewed as harassment based on Vickers' perceivedhom*osexuality, rather than based on gender non-conformity.").

(82.) See, e.g., Statewide Employment Laws & Policies, HUMANRIGHTS CAMPAIGN, http://www.hrc.org/files/assets/resources/Employment_Laws_and_Policies.pdf (last updated Jan. 6, 2012) (explaining thattwenty-one states and the District of Columbia forbid employmentdiscrimination on the basis of sexual orientation, and nine states bangender identity discrimination).

(83.) See D.C. CODE [section] 2-1402.11 (2010).

(84.) See, e.g., Stephanie Bornstein & Robert J. Rathmell,Caregivers as a Protected Class?: The Growth of State and Local LawsProhibiting Family Responsibilities Discrimination, CTR. FOR WORKLIFE L.(2009), http://www.worklifelaw.org/pubs/LocalFRDLawsReport.pdf.

(85.) See supra text accompanying notes 67, 75, 77-78.

(86.) See, e.g., CAL. GOV'T CODE [section][section] 12926,12940 (West 2010) (prohibiting organizations that employ at least fiveindividuals from discriminating against applicants due to their race,religion, color, national origin, ancestry, disability, age, or sexualorientation).

(87.) See TIMOTHY P. GLYNN ET AL., EMPLOYMENT LAW: PRIVATE ORDERINGAND ITS LIMITATIONS 325 (2007).

(88.) See, e.g., S.D. CODIFIED LAWS [section] 60-4-11 (2010).

(89.) See, e.g., MINN. SWAT. [section] 181.938 (2010).

(90.) See CAL. LAB. CODE [section][section] 96(k), 98.6 (West2010).

(91.) See, e.g., N.Y. LAB. LAW [section] 201-d(3)(a) (McKinney2010) (providing an exception when the off-duty conduct "creates amaterial conflict of interest related to the employer's tradesecrets, proprietary information or other proprietary or businessinterest"); N.D. CENT. CODES [section][section] 14-02.4-03 (2010)(prohibiting employers from discriminating against candidates due totheir "participation in lawful activity off the employer'spremises during nonworking hours which is not in direct conflict withthe essential business-related interests of the employer").

(92.) See Marisa Anne Pagnattaro, What Do You Do When You Are Notat Work?: Limiting the Use of Off-Duty Conduct as the Basis for AdverseEmployment Decisions, 6 U. PA. J. LAB. & EMP. L. 625, 647 (2004).

(93.) See TIMOTHY A. GUDAS, STATE LAWFUL PRODUCTS STATUTES 33(2005).

(94.) See, e.g., 820 ILL. COMP. SWAT. ANN. 55/5 (West 2010); MINN.SWAT. [section] 181.938 (2010); MO. ANN. SWAT. [section] 290.145 (West2010).

(95.) Off-Duty Conduct, NAT'L CONFERENCE OF STATELEGISLATURES, http://www.ncsl.org/default.aspx?tabid=13369 (last updatedMay 30, 2008).

(96.) Pagnattaro, supra note 92, at 641.

(97.) See, e.g., Vogt, supra note 1 ("A student at a school inthe Southeastern US was being courted by a small business owner for akey position--that was until the owner saw the student's Facebookprofile, which featured explicit photos and stories about thestudent's drinking.").

(98.) CROSS-TAB, supra note 3, at 9.

(99.) Press Release, CareerBuilder.com, supra note 1.

(100.) See RESTATEMENT (SECOND) OF TORTS [section] 652A (1977).

(101.) Sprague, Googling Job Applicants, supra note 12, at 31.

(102.) See Sokora v. Dayton Hudson Corp., 1 Cal. Rptr. 2d 77, 83(Ct. App. 1991).

(103.) See Sprague, Googling Job Applicants, supra note 12, at 31.

(104.) RESTATEMENT (SECOND) OF TORTS [section] 652B.

(105.) See supra note 7 and accompanying text.

(106.) See, e.g., Fisher v. Mt. Olive Lutheran Church, 207 F. Supp.2d 914, 920, 928 (W.D. Wis. 2002) (denying the employer's motionfor summary judgment because accessing the plaintiffs personal e-mailaccount by guessing its password could be highly offensive to areasonable person).

(107.) Professor Robert Sprague draws an interesting analogybetween overly intrusive preemployment investigations and Johnson v.K-Mart Corp. See Sprague, Googling Job Applicants, supra note 12, at31-32. In Johnson, K-Mart hired private investigators to pose asemployees and gather information regarding theft and drug use. Theinvestigators also learned about employees' personal lives. See 723N.E.2d 1192, 1194 (Ill. App. Ct. 2000). The court held that the lowercourt should not have granted K-Mart's motion for summary judgmentin an invasion of privacy action. Id. at 1197. A hiring official who"friends" an applicant may engage in a similar stunt; he orshe could take advantage of the fact that the candidate may mistake himor her for an acquaintance and thereby learn information that thecandidate would not otherwise reveal to an employer.

(108.) See, e.g., Proceed with Caution: Social Networking Websitesand Blogs, Lab. L. Rep. (CCH), at 2, (May 27, 2009), available athttp://www.felhaber.com/pdf/articles/090622 INSIGHT_992_09.pdf.

(109.) See Jennings v. Micro Tech. Labs, Inc., 765 S.W.2d 497, 500(Tex. Ct. App. 1989) ("[C]onsent amounts to an absolute defense inany tort action based upon the invasion.").

(110.) Megan Oswald, Comment, Private Employers or PrivateInvestigators? A Comment on Negligently Hiring Applicants with CriminalRecords in Ohio, 72 U. CIN. L. REV. 1771, 1771 (2004).

(111.) See supra Part I.B.

(112.) See supra Part I.A.

(113.) See supra Part II.

(114.) One proposed German law takes the idea of a statutorysolution to its extreme by prohibiting employers from viewingapplicants' social networking profiles. See David Jolly, German LawWould Limit the Use of Facebook in Hiring, N.Y. TIMES, Aug. 26, 2010, atB8.

(115.) See supra notes 55-56 and accompanying text.

(116.) See infra Part III.A.2.

(117.) Some courts have held that workers' compensationprevents employees from bringing successful negligent hiring causes ofaction against their employers. See, e.g., Chrzanowski v. Lichtman, 884F. Supp. 751, 756 (W.D.N.Y. 1995). For this defense to apply, theemployees must have been injured in the course of their employment. Id.

(118.) See supra text accompanying notes 45-46; see also Malieki v.Doe, 814 So. 2d 347, 362 (Fla. 2002) ("The core predicate forimposing liability is one of reasonable foreseeability--the cornerstoneof our tort law. With regard to the claim for negligent hiring, theinquiry is focused on whether the specific danger that ultimatelymanifested itself (e.g., sexual assault and battery) reasonably couldhave been foreseen at the time of hiring." (citations omitted)).

(119.) See Seth B. Barnett, Note, Negligent Retention: Does theImposition of Liability on Employers for Employee Violence Contradictthe Public Policy of Providing Ex-Felons with Employment Opportunities?,37 SUFFOLK U. L. REV. 1067, 1082 (2004) ("There is also a need fora uniform standard governing what types of workplace violence areforeseeable.").

(120.) See supra text accompanying note 53; see also supra textaccompanying notes 3-5.

(121.) See, e.g., 18 PA. CONS. STAT. ANN. [section] 9125 (West2010) ("Felony and misdemeanor convictions may be considered by theemployer only to the extent to which they relate to the applicant'ssuitability for employment in the position for which he hasapplied."). At least one jurisdiction places heavy restrictions onthe admissibility of employees' criminal histories in negligenthiring cases, indicating that it does not view a criminal backgroundcheck as a necessary element of pre-employment screening. See MINN.STAT. [section] 181.981 (2010). States such as this one could remove thecriminal history component--subsection (A)(1)--from the proposedstatute. See infra Appendix.

(122.) Some jurisdictions have adopted laws that mandate criminalbackground checks for certain types of employees, such as child care andhospital workers. See, e.g., MD. CODE ANN., FAM. LAW [section] 5-561(West 2010); N.M. STAT. ANN. [section] 29-17-5(C) (West 2010).

(123.) See supra note 55 and accompanying text; see also Cramer v.Hous. Opportunities Comm'n, 501 A.2d 35, 41 (Md. 1985). But seeFoster v. Loft, Inc., 526 N.E.2d 1309, 1313 n.8 (Mass. App. Ct. 1988)("[T]here is no requirement, as matter of law, that the employermake an inquiry with law enforcement agencies about an employee'spossible criminal record."). Subsections (A)(1) and (B) of theproposed statute straddle the line between these competing views: theseprovisions require a criminal background check but mandate thatemployers consider applicants' criminal histories in a very limitedway. See infra Appendix. Of course, jurisdictions that do not view acriminal history check as a necessary part of a reasonable backgroundinvestigation are free to delete these provisions from the statute.

(124.) See supra note 50.

(125.) 513 S.E.2d 395, 397 (Va. 1999). The employer alsoadministered a behavioral test, which did not indicate that the employeewas hazardous. Id. at 396. However, the court did not stress this factorwhen announcing its holding. See id. at 397-98 (focusing on the jobapplication, the reference check, and the applicant's lack of arelevant criminal history). Like pre-employment Internet screening,behavioral tests present a host of challenges and potential liabilities.See generally Kimberli R. Black, Personality Screening in Employment, 32AM. BUS. L.J. 69, 90-121 (1994). Pre-employment drug screening raisessimilar issues. See Stephen M. Fogel et al., Survey of the Law onEmployee Drug Testing, 42 U. MIAMI L. REV. 553, 634-50, 658-80 (1988).In light of these concerns, the proposed statute does not requireemployers to administer drug or behavioral tests. See infra Appendix.

(126.) Se. Apts. Mgmt., 513 S.E.2d at 396.

(127.) See Saine v. Comcast Cablevision of Ark., Inc., 126 S.W.3d339, 345 (Ark. 2003) (emphasizing that the defendant had contacted theemployee's previous employers, which did not indicate that he wasdangerous); TGM Ashley Lakes, Inc. v. Jennings, 590 S.E.2d 807, 812 (Ga.Ct. App. 2003) (noting that the employer did not run a criminal historycheck, did not inquire about prior convictions on its application form,and did not adhere to a company policy requiring letters of reference);Foster, 526 N.E.2d at 1312 (pointing out the employer did not requirethe employee to fill out a job application and did not check theemployee's references when upholding a verdict in favor of theplaintiff); Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 914-15 (Minn.1983) (discussing the employer's failure to contact all of theapplicant's references, scrutinize his application, investigate hiscriminal history, and conduct an adequate interview).

(128.) See infra Appendix.

(129.) See supra text accompanying note 47.

(130.) 474 A.2d 436, 441 (R.I. 1984) ("Realizing that jobapplicants generally provide references who are certain to producefavorable reports, we think that background checks in thesecirc*mstances should seek relevant information that might not otherwisebe uncovered. When an employee is being hired for a sensitiveoccupation, mere lack of negative evidence may not be sufficient todischarge the obligation of reasonable care.").

(131.) See Janssen v. Am. Haw. Cruises, Inc., 731 P.2d 163, 167(Haw. 1987) ("Thus, it cannot be said that [the chef], because ofthe nature of his employment, posed a threat of injury to the public. Tohold [the union to which the chef belonged] liable under these factswould make it an insurer of the safety of anyone who may have becomeacquainted with [the chef] while he worked on the ship.").

(132.) See infra Appendix.

(133.) See infra Appendix.

(134.) 603 S.E.2d 147, 160 (N.C. Ct. App. 2004).

(135.) Id. at 152.

(136.) Id. at 155.

(137.) Id.

(138.) When an employer utilizes a credit report prepared by aconsumer reporting agency, it must comply with the FCRA. See BUREAU OFCONSUMER PROT., supra note 2. Some state laws further regulateemployers' use of consumer reports. See, e.g., N.H. REV. STAT. ANN.[section] 359-B:6 (2010).

(139.) See Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 913 (Minn.1983) ("Were we to hold that an employer can never hire a personwith a criminal record at the risk of later being held liable for theemployee's assault, it would offend our civilized concept thatsociety must make a reasonable effort to rehabilitate those who haveerred so they can be assimilated into the community.").

(140.) See Barnett, supra note 119, at 1084; Jennifer Leavitt,Note, Walking a Tightrope: Balancing Competing Public Interests in theEmployment of Criminal Offenders, 34 CONN. L. REV. 1281, 1310 (2002).

(141.) See GREEN & REIBSTEIN, supra note 34, at 16; see, e.g.,N.Y. CORRECT. LAW [section] 752 (McKinney 2010). Some states alsoprohibit employers from considering applicants' prior sealed arrestrecords when making hiring decisions. See, e.g., 775 ILL. COMP. STAT.ANN. 5/2-103 (West 2010).

(142.) See EEOC Policy Statement on the Issue of Conviction RecordsUnder Title VII of the Civil Rights Act of 1964, U.S. EQUAL EMP.OPPORTUNITY COMM'N (Feb. 4, 1987),http://www.eeoc.gov/policy/docs/convict1.html. This theory is predicatedon the fact that African American and Hispanic individuals arestatistically more likely to possess criminal records, meaning that ano-conviction policy will have a disparate impact on these protectedclasses. Id.

(143.) See infra Appendix.

(144.) FLA. SWAT. ANN. [section] 768.096(1)(a)-(e) (West 2010).

(145.) Id. [section] 768.096(1). Under a widely recognized rule ofstatutory interpretation, the inclusion of the disjunctive"or" within a list of options indicates that only one of therequirements must be satisfied. See, e.g., United States v. Williams,326 F.3d 535, 541 (4th Cir. 2003).

(146.) FLA. SWAT. ANN. [section] 768.096.

(147.) See H.B. 449, 2011 Leg., 113th Reg. Sess. (Fla. 2011),available at http://www.flsenate.gov/Session/Bill/2011/0449/BillText/Filed/PDF; S.B. 146, 2011 Leg., 113th Reg. Sess. (Fla. 2010), available athttp://www.flsenate.gov/Session/Bill/2011/0146/BillText/Filed/PDF.

(148.) The adopted version of the bill does not include theamendments to section 768.096. See S.B. 146, 2011 Leg., 113th Reg. Sess.(Fla. 2011), available at http://laws.flrules.org/files/Ch_2011-207.pdf.

(149.) Another Florida statute prohibits disqualifying individualsfrom licensing and public employment based on their criminal histories.See FLA. STAT. ANN. [section] 112.011. Although this provision certainlyrepresents a step in the right direction, Florida has not done enough toease the burden that background checks place on individuals withunfavorable criminal histories.

(150.) See supra text accompanying note 146.

(151.) FLA. STAT. ANN. [section] 768.096(3).

(152.) Barnett, supra note 119, at 1083 ("Reducing anemployer's fear of liability when hiring an applicant with acriminal record will directly promote the rehabilitation of suchex-offenders and also reduce recidivism.").

(153.) See infra Appendix.

(154.) LA. REV. STAT. ANN. [section] 23:291 (2010).

(155.) Id. [section] 23:291(B), (D)(1).

(156.) Id. [section] 23:291(A).

(157.) See supra text accompanying note 27.

(158.) Louisiana does prohibit discrimination against ex-offendersbased on their criminal histories when the position in question requiresa state-issued license. The statute containing this prohibition carvesout exceptions for several state agencies and for situations in which afelony conviction renders the applicant unsuitable for the position. SeeLA. REV. STAT. ANN. [section] 37:2950. Although this law protects someex-convicts from the consequences of background checks, no Louisianastatute bans general employment discrimination based on applicants'criminal histories, leaving many applicants without recourse ifemployers turn them away due to their criminal convictions.

(159.) See supra text accompanying note 53.

(160.) See supra Part III.A.1.

(161.) See supra Parts II.A.2, II.B.

(162.) Thomas F. Holt, Jr. & Mark D. Pomfret, Finding the RightFit: The Latest Tool for Employers, METROPOLITAN CORP. COUNS., Nov.2006, at 29, 29.

(163.) Id.

(164.) See Mooney, supra note 8, at 759. One commentator hassuggested updating the EEOC's Uniform Guidelines on EmployeeSelection Procedures to require employers to keep records of theirpre-employment Internet searches. See Sprague, Googling Job Applicants,supra note 12, at 40.

(165.) See Mooney, supra note 8, at 759.

(166.) See supra Part II.C.

(167.) See supra notes 106-08 and accompanying text.

(168.) See supra note 109 and accompanying text.

(169.) See Mooney, supra note 8, at 760.

(170.) See CROSS-TAB, supra note 3, at 9-10 ("Nearly 90% ofU.S. recruiters and HR professionals surveyed say they are somewhat tovery concerned that the online reputational information they discovermay be inaccurate.").

(171.) See supra Part II. Fifty-three percent of employees believethat their social networking profiles are private and employers shouldnot monitor them. DELOITTE, SOCIAL NETWORKING AND REPUTATIONAL RISK INTHE WORKPLACE 6 (2009), available at http://www.deloitte.com/assets/Dcom-UnitedStates/Local%20Assets/Documents/us_2009_ethics_workplace_survey_220509.pdf.

(172.) See Stacy Rapacon, Social Networks Can Lend Friendly Hand toJob Hunt, WASH. POST, July 4, 2010, at G3. As further evidence of thistrend, the professional networking website LinkedIn boasted more than 70million members in 2010. Id.

(173.) An industry has arisen around hiding unfavorable onlineinformation, such as web pages that job seekers do not want theirprospective employers to encounter. See Johnny Diaz, For a Fee, DigitalDirt Can Be Buried, BOS. GLOBE, Aug. 26, 2010, at A1, available at 2010WLNR 16981956.

Katherine A. Peebles, J.D. Candidate 2012, William & MarySchool of Law; B.A. 2007, Trinity University. I would like to thank myfamily and friends for their encouragement and support as I drafted thisNote. For their suggestions and editing expertise, I am indebted to thestaff of the William and Mary Law Review.