The Do’s and Don’ts of Checking Social Media Profiles During Hiring

Social media platforms serve as a means for personal expression and communication and provide a window into an individual’s lifestyle, beliefs, and behaviors. 

This dual nature of social media has led many employers to consider these platforms when assessing potential employees. 

However, social media background checks raise significant ethical and legal considerations, and there are rules around what you can and cannot do when evaluating candidates through their social media presence.

Ethical Considerations

Today, the boundaries between personal and professional lives are increasingly blurred, prompting HR professionals to review candidates’ social media profiles in their hiring processes. 

Navigating this complex terrain requires a deep understanding of the appropriate use of information gleaned from social media. Employers must balance the need for insight into a candidate’s character and compatibility with the company against respecting privacy rights and maintaining non-discrimination.

Before looking at someone’s social media profiles, consider the following:

1. Privacy Concerns: While public posts on social media are accessible to anyone, there’s an ethical question about whether an individual’s personal life should affect their professional opportunities. Employers need to consider the boundary between public and private life and respect a candidate’s right to privacy.
2. Consent and Transparency: Ethical hiring practices dictate that employers should be transparent about their background check processes, including social media background checks. Obtaining explicit consent from candidates before conducting these checks is ethical and enhances trust in the hiring process.
3. Bias and Discrimination: Social media profiles often contain a wealth of information about a person’s race, religion, age, sexual orientation, and political views—factors that are protected under employment laws. Relying on this information during the hiring process can introduce bias, intentionally or unintentionally, which is unethical and illegal.

Legal Considerations

To avoid potential pitfalls, social media background checks must be performed with great ethical consideration and adherence to legal standards. 

To conduct these screenings properly, employers should establish consistent procedures that are applied equally to all candidates. This process includes defining what types of online content are relevant to job competencies, obtaining explicit consent from candidates, and ensuring that all findings are used in a non-discriminatory way that complies with employment laws.

1. Compliance with Equal Employment Opportunity Laws: Under federal law, including the Civil Rights Act, Americans with Disabilities Act, and others, employers are prohibited from discriminating against candidates based on specific protected characteristics. Social media checks must be structured to ensure these considerations do not influence hiring decisions.
2. Fair Credit Reporting Act (FCRA): If an employer uses a third party to conduct social media background checks, it may fall under the scope of the FCRA, which is the same law that governs traditional credit and background checks. Under FCRA, employers must obtain explicit consent from the candidate and allow them to dispute any findings that could negatively affect their employment.
3. State-Specific Legislation: Several states and cities have specific laws regarding using social media in hiring. For example, some regions prohibit employers from asking for passwords to private social media accounts. HR professionals must familiarize themselves with the laws applicable in their jurisdiction to avoid legal pitfalls.

Best Practices for Social Media Background Checks

Employers looking to integrate social media background checks into their hiring process must balance gaining valuable insights and respecting candidate privacy. 

Best practices suggest employers focus only on publicly available information and avoid “friend” requests or any means that invade personal accounts. 

Additionally, it is advisable to delay such checks until later in the hiring process, ideally after an interview, to base initial candidate assessments on their qualifications rather than personal life snapshots.

Here are some best practices to adhere to:

1. Develop a Clear Policy: Organizations should develop clear policies that define the scope and limitations of social media background checks. These policies should specify what types of information are relevant to job qualifications and how this information will be evaluated.
2. Limit to Job-Relevant Information: Employers should restrict their review to information directly relevant to job performance. For example, reviewing social media profiles for professionalism and communication skills may be relevant, whereas scrutinizing personal photos and relationships is not.
3. Document the Process: To maintain consistency and protect against discrimination claims, it’s important to document the criteria and process used for social media screenings. This documentation should include who conducts the check, what they look for, and how the information influences hiring decisions.
4. Train HR Staff: Those responsible for social media checks should receive training on recognizing and avoiding unconscious biases. They should also be educated on the legal implications of their findings.
5. Provide Opportunities for Candidates to Respond: If adverse information is found on social media, provide candidates with an opportunity to explain or dispute the findings. This complies with FCRA regulations and aligns with fairness and transparency in the hiring process.

Informed and Compliant Background Checks

While social media can provide valuable insights into a candidate’s suitability for a position, it also comes with significant risks. By adhering to ethical principles and legal standards, employers can harness the benefits of social media checks without compromising fairness or privacy. 

Careful consideration of the implications and a structured approach to social media screening will help you make informed and compliant hiring decisions.

This article should not be construed as legal advice, guidance, or counsel. Employers should consult their own attorneys about their compliance responsibilities under the Fair Credit Reporting Act and applicable state law.

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