It’s only natural to be curious what your job candidate is posting on their social media profiles. But before you send them a friend request, learn what is — and isn’t — ok when it comes to screening their profile and how you can get help conducting legal social media background checks.
Screening Candidates on Social Media Is Legal — but There’s a Catch
Employers are allowed to review a candidate’s social media profiles as part of the hiring process. But there are rules they must follow — and they may have trouble adhering to them if they conduct the social media screening on their own.
First things first: here’s what employers are allowed to do:
- Review any public information posted on a candidate’s social media profile. That means if you can view their social media account without being their “friend,” — meaning anyone can access their profile, whether or not they’re connected on the social network — their social media content is fair game.
Next, here are some things you can’t do (depending on your state’s laws) or shouldn’t do (if you don’t live in a state with these laws) when screening job applicants social media accounts:
- Request to be friends with the candidate so you can see their private profile
- Request they change their privacy settings to make their private profile public
- Ask a candidate for their login credentials for their social media accounts
- Ask the candidate to view their account (for example, ask them to load their Facebook profile on their phone and allow the hiring manager to view it there)
You can find a list of each state’s social media privacy laws here.
Even if your state doesn’t have laws prohibiting the above-mentioned social media screening tactics, we still discourage employers from using them for two reasons:
- Many candidates may feel it’s an unnecessary invasion of privacy and put a bad taste in their mouth. It may even cause candidates to withdraw their interest in working for your company.
- You open your organization up to the possibility of discrimination lawsuits.
Let’s talk more about how a poorly executed social media background check can result in a discrimination lawsuit.
Done Incorrectly, Social Media Screenings Puts You at Risk for Discrimination Lawsuits
Even when you’re in full compliance with local laws regarding social media screening, you still put your organization at risk for discrimination lawsuits. That’s because you may find information during your social media screening indicating your applicant has protected characteristics. If this new information biases your hiring decision (which you may not even realize is happening!), you put yourself at risk for litigation. If your candidate believes you denied them employment because of bias against their protected characteristic(s), they may sue on grounds of violation of Title VII of the Civil Rights Act of 1964 and/or state laws.
Below are some of the protected characteristics that can’t be discriminated against during your hiring process:
- National origin
- Sex (which the Equal Employment Opportunity Commission says includes gender identity and sexual orientation)
- Citizenship status
If you look at a candidate’s social media profiles — especially if you haven’t met them yet — you’re almost certainly going to find out if they are members of a protected class. While any bias that results from this search may cause problems, it will be particularly troublesome if you choose not to interview an otherwise qualified candidate because of bias (which, once again, you may not even realize you have) against their race, sex or other protected characteristic.
All of this is to say it is really tricky to look at a candidate’s social media profiles and avoid breaking laws or discriminating against them.
How to Easily Comply with Job Candidate Social Media Screening Laws
The good news is that there is a way to review a candidate’s social media profile that complies with laws, helps you avoid discrimination and alerts you to the red flags you need to know about before hiring them (for example, if they’ve posted threats to conduct acts of violence on their social media accounts).
An FCRA-compliant social media screening service, like the one provided by JDP, can conduct the screening so you don’t review information that can illegally (whether or not intentional) influence your hiring decisions.
A social media screening service can:
- Find your candidates’ public social media profiles, using ID verification to ensure they’re reporting on the correct candidate
- Apply consistent and compliant and complete screening protocols to ensure every candidate gets a fair and legal screening
- Leverage expertise to deliver reports that meet FCRA and other legal standards, so you never see information from their social accounts that’s prohibited from use during the hiring process
Working with a trusted, third-party social media screening service will let you learn about any red flags that should influence your hiring decisions, while letting you avoid any information that can’t influence your hiring decision. It’s an easy way to know you’re making a more informed hiring decision.