Not all social media users use strict privacy settings that block public access to their accounts; moreover, sometimes these settings change so rapidly that individuals might not be aware that what they thought was private information is actually public.

Searching online social media sites may reveal relevant information about an applicant, such as awards that he/she won or articles that he/she published. But consulting these online sources presents risks.

• Be careful about what types of publicly posted social media information you review and how you use this data.

Example: A Facebook profile contains an “About” section which is generally public and can include information about relationship status, date of birth, political leanings, or organizations and affiliations, such as religious organizations. Photos on the website may give information about race, sex and age. If you looked at this information and are later challenged, you will now have to explain whether you considered it in your hiring decision.

Example: The applicant uses her publicly open Twitter account to announce that she’s pregnant. Now, despite your efforts to limit your interview to legally neutral questions, you suddenly know that the candidate belongs to a protected class.

Example: Private medical information is revealed on Facebook that cannot be considered during the hiring process.

You must make hiring decisions without regard to age, race, gender, familial status or any other characteristic protected by law. You cannot ask a potential employee certain questions, such as questions about pregnancy, religious affiliation or criminal history. For more information, see Interviewing a Candidate.

However, in the above examples, you now have information about an applicant that you wouldn’t have known if you hadn’t visited the applicant's social media page. Now, your visit to social media alone could place your company in a difficult position. You learned something about the applicant through social media that you wouldn’t have otherwise known about the applicant.

In these examples, you face the risk of a discrimination lawsuit if the applicant is not offered the job. For instance, if the pregnant applicant is not hired and sues, it is likely that your company will be required to turn over all computer records relating to social media searches. This will reveal that you investigated online by visiting the applicant’s social media page.

Investigating Applicants: Questions Remain

Employers want to investigate candidates as part of the hiring process. Notably, poor selection practices can lead to claims of negligent hiring. Employers can be held liable for facts that are known or “should have been known” about an employee’s character or job-related information. Employers have a duty to avoid foreseeable risks of harm to employees, customers and the public.

Employers are in a difficult situation: If they look at social media information that points to a potential problem, a racist comment, for instance, what do they do with that information? If they hire the candidate anyway and the person later harasses someone at work, what is the extent of liability? Should the employer have researched further or not hired the employee? Was the employee’s conduct foreseeable?

On the flip side, if the employer fails to conduct a social media search that could have easily revealed a serious problem, such as a propensity toward violence, is that also negligent hiring if the employee later injures someone at work?

Whether an employer can be held liable for not digging deep enough into a candidate’s social media history as part of a background check is still uncharted territory.

Practical Actions

The best practice for employers is to avoid using social media as a background checking tool.

However, there may be situations where your company has weighed the risks and decided that using social media to screen is necessary. Even though there are risks, statistics show that many companies are using social media as one tool in the recruiting process because they believe it will provide them with valuable information in many situations.

If your company decides to include online searches as part of the screening process, some practices can help minimize risk:

• Apply social media screening practices uniformly. Don't just look at the social media files of one applicant or certain types of applicants.
• Remember that hiring decision should be based on whether the applicant has the requisite skill and experience necessary to perform the essential functions of the job.
• Conduct in-person interviews first before conducting any social media screening.
• Have someone that is not involved in the actual hiring decision conduct the social media search and review the information. Information that is passed on to the hiring manager should only be that which is relevant to the job and can be legally considered. For instance, the screener would not pass on information regarding race or religion to the hiring manager, but might pass on information that shows the employee did not attend the school they listed on the job application. Train screeners on the legal criteria that can be used and what they should and should not pass on to the hiring manager.
• If you use a third party to conduct the screening, be aware of laws, such as the Fair Credit Reporting Act, that may require you to get authorization, provide notices or make certain disclosures. For more information, see Obtaining Investigative Consumer Report.
• If you pass on a candidate because of job-related information that was revealed during an online search, consider allowing the applicant the opportunity to explain the content. Keep a record in case the decision is later challenged; social media information is often deleted.
• Company policies should forbid managers from considering protected classes when making any employment decision. It is important to train managers to consistently follow those policies and to make sure that managers understand exactly what type of situations can give rise to liability.
• Ensure that your hiring manager keeps notes and files demonstrating that any hiring decision was based on legitimate business reasons:
• If you can show that your hiring decision was based on a neutral and objective evaluation of the applicant, he/she will have a more difficult time proving that your hiring decision was based on discriminatory reasons. For example, your notes and files should show that the reason you didn't hire the person was because he/she lacked specific training or skills that the job demands.
• Follow the laws relating to retaining records during the application process.

• Ensure that your hiring manager and others included in the recruitment process are aware of the law prohibiting employers from requesting applicants to disclose personal social media.

For more information on hiring and recruiting practices, see Recruiting & Hiring.