Many employers like to review their applicants’ Facebook and Instagram pages just to get an unfiltered view of the candidates they are considering hiring. But, if you ask for applicants’ social media passwords, you could violate state law, and even limiting searches to public pages can provoke a discrimination claim. Find out five rules to keep your organization out of trouble.
Q: We have heard that some employers look at applicants’ Facebook, LinkedIn, Instagram, Twitter, and other social media pages as part of their hiring process. Can we do this? Should we?
A: Checking applicants’ social media pages is becoming more popular with employers. In fact, a 2015 survey from CareerBuilder found that 52% of 2,175 responding employers use social networking sites to research job candidates, up from 43% in 2014. According to the survey, most employers are looking for information that supports the applicants’ qualifications for the job (60%), while 56% check social media to see if candidates present themselves professionally. Interestingly, 37% wanted to see what other people posted about the candidate. Only 21% admitted they were looking for “reasons not to hire” the candidate.
However, checking an applicant’s social media may be a little risky, especially if you go beyond public searches and request an applicant’s password to access their private pages, for example on Facebook or Instagram. Although no federal law addresses asking applicants for their social media passwords, almost half of the states (including California, Illinois, Louisiana, Maryland, Michigan, New Jersey, New Hampshire, Nevada, Oregon, Utah, Washington, and Wisconsin) specifically prohibit employers from requiring applicants and employees to provide their social network passwords or to display private portions of their social networking pages to employers. The laws generally do allow employers to check information that is available in the public domain of the Internet and social media sites. Several other states also are considering similar legislation, and the House of Representatives has introduced federal privacy protections for applicants’ and employees’ social media sites, though the bill has stalled in Congress (H.R. 2277).
In addition, most applicants will view a request for access to their protected social media pages as an intrusion into their private lives and some may even withdraw their application because of the request. And, Facebook makes the solicitation of another person’s Facebook password a violation of their terms and conditions of use of the social networking site. So, clearly it is prudent to limit any search of social media sites to information in the public domain.
Even if you are searching only for information that is publicly available on the Internet, you also should be aware of other potential problems that can arise from material you find online. For example, you may find out about an applicant’s membership in protected classes that could lead to a discrimination claim if you do not hire the individual. While protected classes such as race and sex may be evident in a face-to-face interview, other protected classes such as disability, national origin, and sexual orientation (protected under many state discrimination laws) may not be. Further, if you do not hire someone because of their participation in a legal off-duty activity, their political views, or the fact that they smoke, you could be violating state laws that prohibit basing employment decisions on these actions.
In spite of these potential risks, many employers still find the Internet a valuable resource for researching applicants. The 2015 CareerBuilder survey indicates that employers discovered both positive and negative information about candidates on the Internet that affected their hiring decisions. Forty-eight percent of the hiring managers surveyed indicated that negative information they found on social media about a candidate resulted in a decision not to hire. The most damaging applicant postings indicated provocative or inappropriate behavior, poor communication skills, and bad-mouthing their employers. However, 30% discovered positive information on the social media sites that led to a job offer, including that the sites supported the applicant’s professional credentials and qualifications or indicated the candidate would be a good fit with the hiring company’s culture. (You can find the CareerBuilder social media use survey online here.)
So, if you are going to check out your candidates online, you should follow these five simple rules:
1. Notify your applicants that you will be investigating them on publicly accessible Internet and social media sites and get their permission to do so. 2. Look only at information posted publicly. Do not ask for personal passwords or try to “friend” a candidate surreptitiously.
- Look only at information posted publicly. Do not ask for personal passwords or try to “friend” a candidate surreptitiously.
3. If you use an outside party to conduct the research, make sure you are following the Fair Credit Reporting Act’s (FCRA) comprehensive notice, consent, and disclosure obligations both prior to doing the checks and after the results of the checks are reported. (As a reminder, the FCRA applies whenever you use outside agencies to perform credit or other background checks (including criminal, reference, or driving record checks) on your candidates and employees.)
4. If you discover information about an applicant’s protected class or legally protected activities, make sure you do not use that information as part of your decision-making process. For example, do not provide this type of information to hiring managers. Any information from social media that you consider should be job-related and business-related only.
5. Document your search and include the information in the applicant’s file. You want to be able to show that any inappropriate information was not considered in the hiring process.