A Warning To Employers Implementing Pre-Employment Social Media Screening

Well intentioned employers seeking the best talent to fulfill open positions may think that perusing a candidate’s social media account is a good way to learn more about the candidate and decide if they are a good fit for the open position.  However, employers using social media during the screening process face significant legal pitfalls.

Potential Risks

1. Risk of Discrimination. Access to candidates’ social media profiles can increase an employer’s likelihood of violating federal, state and local laws designed to prohibit discrimination in the hiring process based on a prospective employee’s protected class and characteristics (i.e., race, religion, disability status, etc.).  Discrimination claims can arise when researching applicants’ social media because a hiring manager may become aware  of information that may not be legally requested through the general application process.  If the candidate is denied the position, it could be difficult to prove that a hiring manager or recruiter was not influenced by the information in their hiring decisions.
2. Privacy Concerns and Lawful Off-Duty Conduct. Social media accounts often contain personal information, photos, and interactions that applicants may not want or choose to share with potential employers.  Many states, including New York, have enacted laws protecting applicants’ lawful off-duty conduct and prohibit employers from using that conduct as a basis to deny employment.  By way of example, these laws protect candidates’ lawful possession of firearms, engagement in political activities, use of marijuana (in certain states) and participation in recreational or leisure activities during their personal, non-working time.  Additionally, many jurisdictions prohibit employers from requesting password and username information of a prospective employee’s social media accounts.
3. Potential Violations of the Fair Credit Reporting Act (the “FCRA”). In some cases, employers may seek out a third-party to perform social media background checks where they aim to parse out any potential information about a prospective candidate’s protected class or lawful off-duty conduct.  However, employers are advised to take caution because third-party vendors performing these checks may compile and evaluate information to determine an applicant’s eligibility for employment through a consumer report.  Under the FCRA and likely under similar state laws, prior to obtaining consumer reports, employers must (i) notify the prospective employee that a consumer report may be obtained in relation to the hiring process and (ii) obtain written consent from the job applicant.

Best Practices

1. Create a social media screening policy for all hiring matters. This policy should establish clear guidelines and limitations regarding from the access and use of information from candidates’ social media accounts to ensure that all hiring decisions are made in a non-discriminatory matter.  The policy only focus on valid predictors of job performance and to limit which social media platforms will be reviewed.  For instance, employers may choose to only view information that is available publicly on LinkedIn and may require hiring managers to review LinkedIn to verify a candidate’s prior work experience.
2. Develop a policy regarding the documentation of all information provided and reviewed throughout the hiring process. It is important to document that during the hiring process, individuals tasked with hiring decisions were not given access to any information protected by federal or state law discovered through a social media background check.  This will also protect employers to help defend against allegations of discrimination if potentially disqualifying information about a candidate is obtained during the hiring process.
3. Ensure all social media screening is performed by individuals trained on compliance with all federal, state and local laws. Implement internal training programs and structured protocols to ensure all hiring decisions are lawful and non-discriminatory.

This summary is provided for informational purposes only and is not intended to constitute legal advice nor does it create an attorney-client relationship with Rimon, P.C. or its affiliates.

Dave Mahoney advises private business owners and their human resources professionals on how to navigate the always evolving employer-employee relationship. Dave is a trusted resource who advises companies, large and small – union and non-union, with the day-to-day challenges of complying with constantly changing federal, state, and local laws. Dave takes a proactive approach, helping employers avoid disputes by establishing policies and procedures that are designed to establish clear avenues of communication and expectations between companies and their workforces to avoid litigation whenever possible. Dave also regularly conducts internal audits and investigations to solve problems before they arise. Read more here.

Haley practices in the areas of bankruptcy and creditors’ rights, trusts and estates and labor and employment law. Read more here.