Photo: Jason Howie via Flickr (CC by 2.0)

The stories are legendary:  the employee who calls in sick and then posts a picture of himself dressed as a fairy at a Halloween party hundreds of miles away; the video of the salesman in a drunken stupor at a conference he is attending on the company’s dime; and just this past week, the New York City lawyer railing against an employee and a customer speaking Spanish to one another in a restaurant.  An individual’s social media can be a treasure trove of information about a person and could give insight into a person’s character and habits that might not become apparent until months or years of employment have gone by, perhaps never.

Despite this, employers would be wise to proceed with caution before engaging in a full scale social media search of an applicant.  Some possible areas of concern include:

Fodder for Discrimination Claims

Searching even the public social media accounts of individuals can reveal a lot of personal and private information that one would never seek or obtain in an interview or through a discussion with a reference.  Although you might learn something about a potential employee’s character, you are even more likely to get information about someone’s ethnicity, religion, disability, age, medical information, sexual orientation, or even genetic information.  You might learn that an applicant is pregnant, suffers from an anxiety disorder, has a child with a disability, a family member with cancer who will need care, and other similar information.  These are facts which you can’t “unlearn” like a bell can’t be “unrung.”  If the company chooses not to hire the applicant, the rejected individual might file a discrimination claim.

Invasion of Privacy Claims or Ethical Violations

The potential for liability is even greater when the search goes beyond purely public social media posts.  Seeking information from individuals who are “friends” with the applicant on Facebook or Instagram or using the social media account of another to gain access could constitute an invasion of the applicant’s privacy.  Worse yet, creating a fake profile or account or pretending to be someone else is a clear ethical violation under the codes of conduct of some professions.  Lawyers have been disciplined for obtaining information from social media accounts under false pretenses, and other professions may have similar rules which would be violated by such dishonest conduct.

Many states, New Hampshire included, have laws protecting individuals’ privacy by prohibiting employers from seeking employee passwords to private social media accounts.

Fair Credit Reporting Act Violations

When a company uses a third party vendor to conduct an investigative background check which includes a social media search, the Fair Credit Reporting Act (“FCRA”) might be implicated.  FCRA has specific rules about consent and notification to the individual if an adverse decision is made on the application.

If You Go There …

Deciding to commence a social media search of an applicant requires careful consideration.  Before proceeding, the business is well advised to ask an important question:  Will this give me important job-related information I need to make a hiring decision?  If the decision is to move forward, consider the following:

  • Limit the search to truly necessary information. If the objective is to review an individual’s professional history, articles authored, speaking engagements and the like, limit the search to professional sites such as LinkedIn.
  • Always focus on purely public sites or areas of sites. Twitter is public.  Facebook has both public and private areas depending on the individual’s privacy settings.  Also, some of what is posted on Facebook is not within the control of the individual.  Others may post and tag someone without permission or share posts that the person would not have shared.
  • Have someone outside of the decision making group conduct the social media search. Let them know what type of information is needed to make the decision and what they should be looking for.  Instruct them to filter out information which is not job-related.
  • Document hiring choices carefully. Assume that someone will be Monday morning quarterbacking your decision, and keep careful notes of why the selected candidate was chosen over the other finalists; i.e. interviewed better, more experience, advanced degree, excellent references.

As with all hiring decisions, proceed with caution, keep things business focused, and document, document, document.  Your attorney will thank you for it.