Most organizations can easily access and review the social media profiles of job candidates and new hires. Even so, many employers wonder about the ethics and legality of social media tracking as part of the applicant screening process and whether they can incorporate it while ensuring compliance with EEOC regulations and other laws. Although tracking social media is an option for most employers, here we’ll discuss the potential downsides and legal implications, as well as best practices for employers that wish to incorporate social media tracking as a part of their screening process.
Using social media tracking formally or informally as part of the applicant screening process is fairly common. This is, in part, a byproduct of the growing ease of access to candidate or new hire social media profiles through search engines and other online tools. Technically, there are aspects of a candidate’s social media profile(s) you are entitled to consider in the hiring process. Many job candidates are even aware of this fact and tailor certain social media profiles, especially on platforms like LinkedIn, to highlight their strengths, social connections, investment in lifelong learning, career advancement, and more.
Nevertheless, there are many other private and protected characteristics ranging from demographic information to personal health status and political views which, strictly speaking, can not be considered in the hiring process or hiring decision. In addition to EEOC guidelines protecting against discriminatory hiring, most states also have laws designed to protect candidates from being excluded on the basis of a non-job-related characteristic.
If an employer wishes to conduct social media tracking as part of the applicant screening process, they will need to clearly articulate their policy, as well as the parameters of any search that will be conducted, including which sites/platforms will be reviewed or any other open searches that will be pursued. Formulating a written consent form to capture this and other aspects of the process can be quite involved, and each step of the process must be thoroughly documented (and retained) for each candidate in order to prevent future accusations of discrimination or unfair use or acquisition of personal data.
For these and other reasons, any employer considering social media tracking should consult their legal counsel and a qualified background screening provider to ensure that they apply a strategy that is compliant with all local, state, and federal laws, and mitigates the risk of discriminatory hiring claims. Employers should also keep in mind that a growing number of states forbid employers from requesting access to applicant’s or employee’s private social media pages/platforms altogether, including by requesting login information or through a more indirect approach like “friending” a candidate’s or employee’s account(s).
Often, hiring managers review social media profiles not to unearth concerning information about a candidate, but to affirm qualities and qualifications demonstrated through a resume review or interview. If information or content is discovered that raises serious concern, such as discriminatory or abusive language, it can fairly be taken under consideration. Even so, employers need to approach these issues carefully. For instance, if a candidate openly complains about their current (or past) position, they are, strictly speaking, still within their rights (exercising protected behavior) and these comments cannot be used as the basis for a hiring decision. Similarly, a candidate’s comments on the use of illegal substances can not be used to dictate a hiring decision or used in place of a different and more objective screening tool like drug testing, which would also need to be applied to an entire category of employees within the organization and not applied selectively.
If an employer identifies red flags or concerns in the social media tracking process, it’s best to speak with a legal expert or background screening provider to consider next steps for documenting and considering these factors in the hiring process. It’s an employer’s right to hire candidates who will not cause reputational damage to the company or threaten the well-being of fellow employees, but any information obtained during social media tracking that will have a bearing on a final hiring decision should be navigated thoughtfully and with legal justification in mind.
It’s important to remember that any personal information gathered or reviewed in a formal or informal social media tracking process could later be presented by a candidate as the basis for discriminatory hiring if an employer opts to deny the candidate employment. This is partially because social media pages often contain a wealth of personal information, which could include everything from evidence of an existing illness, professed use of legal drugs, participation in high-risk activities, demographic details, participation in social organizations, and much more. All of these factors must be excluded from any hiring decision, but it’s common for employers and hiring managers (unconsciously or otherwise) to remember these details or develop a bias as they make a hiring decision. In some cases, a candidate could be able to successfully demonstrate discrimination as a result of an employer’s access to this information.
The Orsus Group advises employers and clients to carefully consider the pros and cons of using social media tracking during the new hire screening process, especially when other background screening processes ranging from employment verification, education verification, international searches, and other tools exist to create a low-risk and comprehensive portrait of a candidate’s qualifications and suitability for a given position. When our clients do decide to implement social media tracking, we are committed to helping them apply a process that is EEOC-compliant, aligned with state laws, and vigilant about the fair and proper use of any personal information used or obtained during the screening process.
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