Social Media Screening by Employers: What's Legal, What's Risky

With today’s technology, employers increasingly are using social media to learn more about job applicants and employees. However, social media screening also poses legal concerns, especially around privacy, discrimination, and compliance with federal laws like the Fair Credit Reporting Act (FCRA).

Why Would an Employer Look at an Employee or Applicant’s Social Media?

An employer may want to conduct a social media background check to identify job-relevant red flags or positive indicators before hiring an applicant or during employment.

Looking at an Employee’s Social Media Profiles

An employer may want to assess if an employee is broadcasting company secrets, harassing coworkers, or posting negative comments that may damage the company’s brand. They may want to assess the potential risks of the employee’s behavior to their company.

Looking at a Candidate’s Social Media Profiles

An employer may legitimately look at an applicant’s social media activity to see if they are qualified for the role. For example, they might compare an applicant’s LinkedIn profile with their resume to look for inconsistencies or exaggerations.

As part of the hiring process, an employer may also want to make sure an applicant is an appropriate cultural fit who matches their values. For example, an employer might not want to hire someone who posts about heavy drinking or drug use, posts inappropriate photos, engages in hate speech, or badmouths former employers.

However, employers must be careful as there are some legal risks with this activity.

When Can Social Media Screening Get an Employer in Trouble?

There are two common areas where an employer can run into legal problems when using social media screening as part of the hiring process: 1) when they use it to make discriminatory decisions, and 2) when they fail to get written consent for it during background checks.

For a Discriminatory Purpose

Under EEOC rules, an employer is prohibited from making employment decisions based on protected characteristics such as:

• Race

• Color

• Religion

• Sex

• National origin

• Age (40 or older)

• Mental or physical disability

• Genetic information (including family medical history)

An employer cannot use social media screening to find out information about an applicant or employee to discriminate against them.

Not Following Fair Credit Reporting Act (FCRA) Rules

Many employers use third-party consumer reporting agencies to perform background checks. If so, they must follow the rules under the Fair Credit Reporting Act (FCRA) as social media hiring reports are considered consumer reports. Employers must first get written consent from applicants.

The FCRA requires that employers notify the applicant of the following:

(1) a background check or investigation may be performed

(2) the applicant has an opportunity to consent

(3) any information in the report may be used to make an “adverse action decision”

Employers cannot conduct these background checks without candidate consent.

If an employer takes an adverse action (like denying the job), the employer must provide the candidate with a copy of the report along with a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.” If the decision is finalized, the employer must send a second notice (the formal Adverse Action Notice).

Practical Dos and Don’ts for Employer Social Media Screening

DO

1. Only look at public postings or content that does not involve passwords.

2. Create a documented, clear policy where any review of social media presence is consistent and only related to the position.

3. Focus only on job-related behavior such as honesty and qualifications, not lifestyle choices or unpopular opinions.

4. Separate the role of the social media screener from the hiring manager or decision maker to reduce the risk of bias or discrimination.

5. Train screeners and hiring managers on unconscious bias, and federal, state, and local discrimination laws.

DON’T:

1. Don’t ask or require an employee or applicant to give you their username and password. Know your state laws for social media password requests. 

2. Don’t make a hiring decision based on an applicant’s social media account if it discriminates against protected characteristics, such as race, age, religion, disability, etc.

3. Don’t screen some job applicants or employees and not others, as it may seem biased. Have a consistent policy.

4. Don’t rely on outdated or out-of-context posts on social media platforms.

5. Don’t mix-up the applicant’s social media profile or online presence with someone with a similar name.

Get Legal Help

To make sure your background screening process and employment decisions operate within the law and do not discriminate against protected classes, you may want to consult an employment lawyer for legal advice.