Use Caution When Using Social Media Searches in the Hiring Process

May 14, 2018

This post is part of our ongoing series exploring the impact of technology on legal issues. For an introduction to the series and a collection of the posts in the series, check out this post.

The hiring process is a key component of operating a successful business and employers do their best to properly vet prospective employees. Many employers conduct searches online through search engines and scour social media profiles as a part of that process, but there are significant legal risks if that process is not conducted with caution. Here is an overview of a few of the potential issues an employer could face with seeking out information online:

Discrimination Claims

Searching social media profiles can reveal all kind of information about an individual, including sensitive information which could identify that person as a member of a protected class. In Pennsylvania, protected classes include race, color, religion, national origin, ancestry, sex (including pregnancy), age, physical or mental disability, use of a guide or support animal, having an association with an individual with a handicap or disability, familial status, education, sexual orientation, veteran/military status and genetic information.

Think about how much of the above information you could learn as a result of a quick review of someone’s Facebook profile. If an employer decides not to hire a prospective employee based on learning some of the above information, the applicant could bring a discrimination claim.

In order to avoid liability for these claims, consider the value of conducting a social media search in the first place. Is there significant job-related information that can be gained from conducting such a search? Employers should carefully document all decisions made in the hiring process and use the same screening process for all applicants.

If you decide that social media searches are useful for identifying job-related characteristics, then consider having one person or a small group conduct the search, and instruct them to filter out all information that is not job-related and pass that on to those with input on the hiring process in order to avoid decision-making based on protected criteria.

Violations of the Fair Credit Reporting Act if Using Third Party Background Searches

If an employer uses a third-party service to conduct an employment background check for the purpose of hiring, the federal Fair Credit Reporting Act requires that the applicant be informed of the investigation, given an opportunity to consent, and notified if the report is used to make an adverse decision. The Federal Trade Commission has an excellent resource outlining this issue and related Fair Credit Reporting Act issues: The Fair Credit Reporting Act & social media: What businesses should know

Crossing the Line with Invasion of Privacy Claims

Expectation of privacy claims arise when a person has a reasonable expectation of privacy in the information that is viewed. Therefore, Employers should be mindful of the manner in which they obtain information about applicants through social media. Employers should avoid using fake profiles to gain access to information only available to “friends” or “followers”, or using other nefarious means of accessing information that they may not have the right to see.

Have questions about your hiring process and how to avoid costly legal issues? Feel free to contact us.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University Commonwealth School of Law and works regularly with employers to prevent and resolve workplace conflicts.