Employment Law Legal Topics Social Media

Should You Check a Job Applicant’s Social Media Posts?

178161035Employers are wondering whether browsing public social media sites to learn more about a job applicant is worth the potential risks. A CareerBuilder survey found that 39% of employers use social networking sites to research job candidates, but do the other 61% have good reasons to stay away? 

First, let’s be clear what we are talking about: we’re referring to only public social media sources; prospective employers can’t request or require that applicants disclose social media IDs, passwords, or other personal social media content in the employer’s presence, i.e., allow the employer to “shoulder surf.” See Lab C §980. And “social media” includes social media services and accounts, as well as content such as videos, photos, blogs, podcasts, text messages, email, and website profiles and locations. Lab C §980(a).

It’s understandable that a prospective employer would want to learn as much as possible about an applicant. With so much information readily available on public social media sites, it can be very tempting to take a peek and there can be benefits to doing so, such as:

  • employers can learn information that make them more positively disposed toward a candidate;
  • employers can find concerning content, e.g., evidence of inappropriate behavior or information that contradicts listed qualifications.

But there are definitely risks to employers who conduct social media searches on applicants. One risk is that employers can overly rely on concerning content found there to drop a stellar candidate. According to research cited by Business News Daily, “employers who quickly dismiss applicants based on unpleasant status updates and incriminating photos from a trip to Vegas may actually be missing out on great talent.”

The biggest legal risk is of unwittingly engaging in discrimination. Once an employer learns something on social media, it can’t unlearn it. The employer may discover information there that will reveal the applicant’s membership in a protected group. For example, the Facebook page may reveal the applicant’s birthday or college graduation date. Or the applicant’s tweets may indicate membership in a particular religious or cultural organization. Once an employer has learned protected information, how would it be possible to ensure that this knowledge didn’t impact the hiring decision?

Given the risks—and limited benefits—the best course of action is to steer clear of social media searches of applicants. It’s difficult to argue that there’s data in public social media sources that aren’t available through an application, resume, references, and interview. And it’s much more likely the employer will run into data that it shouldn’t get—data that, for the most part, won’t be useful and may unfairly tilt the employer toward or against the applicant.

For practical advice on hiring issues, including a sample interview guide, check out CEB’s Drafting Employment Documents for California Employers, chapter 1. And for hiring guidelines and pitfalls, turn to CEB’s Advising California Employers and Employees, chapter 1. Learn more from experts on using social media in hiring and other employment decisions in CEB’s program Productive Uses and Pitfalls of Social Media in the Workplace, available On Demand.

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© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

8 replies on “Should You Check a Job Applicant’s Social Media Posts?”

It is definitely a balancing act. Social media these days is such an integral part of an employee’s lifestyle, that it doesn’t seem outrageous to the conscious to reasonably be curious. The liability lies in using any Race, Color, Creed, Religion or Sexual Orientation information gleemed from this. You simply can’t use it. The other problem employer’s face, is that by merely knowing this information, if they choose to take adverse action even though it has nothing to do with this information, how do they prove it.

This is the main reason, we do not offer this search to our clients. It’s simply too dangerous and it’s information that can be easily obtained outside of our services.

Dusty R. Lefdal
Employers Investigative Services.

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