Fire Law: Cybervetting: Should You Or Shouldn't You?

My wife has always accused me of making up words – but the term “cybervetting” is not one that I can take responsibility for. Cybervetting is the process of researching someone’s “Internet reputation.” It is being used increasingly by prospective employers and even acquaintances to learn more about people through online sources. The process includes looking at social networking sites, online profiles, photos and posts, all in an effort to gain a better understanding of a person.

Police departments make extensive use of cybervetting to better understand and evaluate candidates during the hiring process. Fire departments have followed the lead of police departments in venturing into the realm of cybervetting. One young firefighter told me about an interview he had recently. He entered a room to find three area fire chiefs seated at a table. Before them was a second table with a laptop computer and projector with the image showing on a wall for all to see. After the initial pleasantries were exchanged, the applicant was directed to log into his Facebook page. Rumor has it that several applicants withdrew at that point from further consideration.

Good idea or bad?

Here’s why cybervetting sounds like a good idea: Many fire chiefs believe cybervetting makes sense because it offers them insights into a candidate’s background. There are things about a prospective candidate that can be revealed by looking at their online activity that interviews and background checks may not necessarily disclose, including immaturity, involvement in illegal activities and the use of drugs and alcohol. There is a lot to be said for identifying these characteristics before a department invests thousands of dollars in hiring and training a candidate who is not suitable.

And here’s why cybervetting is probably not a good idea: At the risk of offending fans of cybervetting, there are some huge risks. First and foremost, someone’s Facebook page or social media profile could be sabotaged by pranking friends, enemies or even competitors. A fire department could lose a potentially outstanding candidate because of online information that is inaccurate or otherwise beyond the person’s control.

Second, there are a number of factors that are illegal to consider in hiring, such as a person’s race, gender, marital status, existence of disabilities, religion and pregnancy status. When it comes to hiring, these factors are so off-limits that even asking questions about them in an interview crosses the line into prohibited discrimination.

However, simply viewing someone’s Facebook page may reveal these protected matters to the same extent as if the person was asked a prohibited question during an interview. How does a fire department that learns that a female candidate is pregnant through her Facebook page defend itself from a pregnancy discrimination claim if it does not hire her? The employer who gains this information by cybervetting is in the same position as if it had directly asked the prohibited question “Are you pregnant?”

A third reason, and the most cited reason that so many oppose cybervetting, is privacy. Enough said.

Where are we headed?

As of the time of writing this column, six states (California, Delaware, Illinois, Maryland, Michigan and New Jersey) have already enacted laws prohibiting an employer or prospective employer from using cybervetting and it is likely that by the time you are reading this column additional states will have followed suit. Congress is also looking into banning cybervetting nationally.

For fire chiefs who are hooked on cybervetting, all is not lost. There is an option that lets a fire department have its cake and eat it too. There are firms that will cybervet a candidate and in the process remove any information that the employer cannot by law consider. The result is a sanitized version of the candidate’s social media activities that has been purged of information that an employer cannot consider. What remains will often be helpful in evaluating a candidate’s maturity or involvement in illegal activities without stepping over the line.

The use of cybervetting firms has two downsides. First, the services provided by these firms is expensive. Second, it would appear that even though they address some of the legal concerns raised, cybervetting firms will likely not survive the legislative prohibitions against cybervetting. Thus, it may be a short-term fix for something that in a short time will no longer be permitted.

A final note for applicants or employees who believe they have been unlawfully discriminated against on account of cybervetting: Contact an attorney who handles employment discrimination cases. n