May an employer screen an applicant using social media?

Yes, but there are risks that cause some to view this practice as unwise. Suppose an employer decides to use social media to screen applicants. In that case, it must consider the procedures discussed in the following article entitled: What procedures may help my company lawfully screen applicants using social media?

At least theoretically, not screening applicants using social media may expose an employer to a negligent hiring claim if an employee takes action consistent with information readily discoverable on social media prior to being hired. It is likely that the more our society becomes entrenched in the use of social media, the more likely a jury will expect employers to use social media as a tool to screen applicants.

What procedures can an employer implement to screen applicants using social media?

  1. Create a list of character traits that may conflict with the job
    • Discussion of unprofessional topics in posts (sex and drugs, but not necessarily rock & roll)
    • Poor judgment
    • Conduct that may bring disrepute upon your organization (photos of them engaging in illegal behavior)
    • Information inconsistent with application or resume
    • Information indicating violent tendencies
    • Information praising illegal activity
  2. Have a non-decision maker perform the searches and report only information that is relevant to the character trait list.
    • The non-decision maker should understand what information, if given to the decision maker, could be used as a basis to claim illegal discrimination in failing to hire the applicant. Examples of information that should not be reported to the decision maker are: disabilities, religious affiliation, sexual orientation, medical conditions and the like. This will shield the decision maker from a subsequent claim that they learned some fact through the social media search that became the basis of a discriminatory decision not to hire the candidate.
  3. Only search public, non-protected sites.
    • An employer should not pose as a friend of the applicant or have anyone else attempt to gain access to otherwise private websites. Also, an employer should not ask for or use the passwords of the applicant. Doing so exposes an employer to a violation of the social media website’s user agreement and a potential lawsuit under the Stored Communications Act. 

Beware of an applicant’s complaints about working conditions at a former or current employer as these may be protected activities which should not serve as a basis for rejecting the candidate.  Generally speaking, employees have the right to discuss the terms and conditions of their employment, and punishing them for doing so could land you in hot water.

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The information herein is not legal advice. The information is in the form of legal education and is intended to provide general information about the matter discussed.  The above is not, nor is it intended to be, legal advice and does not create an attorney/client relationship.