Can You Check an Applicant’s Social Media During the Hiring Process?

Know Your Risks, Stay Compliant

By Leslie Lasher

Most employers review an applicant’s social media profiles at some point during the hiring process, or perhaps find the person on-line and recruit them directly. While it seems commonplace and innocent to simply read someone’s social media profile – employers often catch themselves, and call me to ask whether an employer can legally check an applicant’s social media during the hiring process.  The answer is yes, but, it’s important to be aware of potential pitfalls when doing so.

Using social media sites to vet applicants can be tricky.  Lots of employers (and their employees) are tempted to look at social media profiles to get another, perhaps more authentic take on an applicant by reviewing his or her online presence.   Here are a few pointers when perusing social media.

First, remember to be fair.  This means reviewing every applicant in the same manner.  It’s like the Fair Credit Reporting Act: if you pull one applicant’s credit report to assess risk for hiring, you should pull every applicant’s report. Thus, if the employer reviews Facebook and LinkedIn for one applicant, it should not look at Twitter for another applicant, or worse yet, not look at social media at all.

Second, never ask for access to an applicant’s accounts. Demanding passwords could violate a multitude of different laws, and could also put the applicant in violation of the terms of service of most of the major social media sites.  That said, any review should be limited to public information.

Finally, searches on social media should be completed later in the hiring process, and ideally, after an offer of employment has been made.  That sounds counter-productive, but when an employer learns that an applicant is a protected class by virtue of a social media search, unconscious bias steps in, and the employer will be in a more difficult position should a discrimination issue arise.  As with any other part of the hiring process, employers should document everything that is done, including saving screen shots of social media pages reviewed.