I hear too many lawyers strongly discourage employers from ever looking at an applicant’s social media accounts. Yes, there are legal risks, but those risks can be mitigated.
As important, there can be legal and business risks in not looking at social media during the hiring process. So we're actually talking about risk management, not risk avoidance.
What are the legal risks if you look at an applicant’s social media profiles, such as on Facebook, Instagram or LinkedIn? By the applicant’s pictures or words, you may learn things about the applicant’s membership in a protect group, such as his or her likely race, religion, disability, age, etc.
Even if you don’t consider doing it, an applicant may unlawfully argue that you did. It's not easy to prove the negative.
On the other hand, you may find valuable information that lawfully may be considered. In one case, an employer found racist posts by a managerial applicant.
I was glad the company learned of this, or they would have hired the miscreant. Think of the legal and business risks that could have occurred if they had hired him.
Most people are perfect, at most, twice in their life: at birth and in an interview. Reviewing social media accounts can help you determine who the person truly is who you're considering hiring. Here are six recommendations to minimize the legal risks, and maximize the business rewards of reviewing social media profiles as part of the hiring process.
1. Do not look at social media profiles to screen applicants.
Using social media to screen applicants is using it too early in the process. Generally, it's unnecessary and risky. It's unnecessary because you should be focusing on the position’s objective criteria at this point. And it's risky because an unqualified applicant may claim that she was rejected because you saw she was an older Asian woman, for example.
2. Consider looking at social media at the end of the hiring process.
Review social media only at the end or near the end of the hiring process. Some employers include this step as part of their background check.
The risk is much lower because, after interviewing the applicant, you will already know that the applicant is, as in the prior example, an older Asian woman. Additionally, fewer applicants will have their social media profiles reviewed so it has fewer risks.
But there still is some risk. An individual may post information you otherwise would not learn about in the interview, such as he that he's gay or on medication for depression.
The risk must be balanced against the value of what you may learn. Another case could be an applicant posting pictures of themselves wearing virtually nothing.
3. Human resources should review social media.
Someone on your HR team - not the hiring manager -- should review candidates' social media account. HR professionals are better equipped to focus on what can and cannot be considered.
You should tell hiring managers that they can't check social media accounts. If you don’t tell them they can't, they will assume they can and may do so at the wrong time, or consider factors they shouldn't.
4. Only review public information.
Never ask an applicant for his or her social media password. It is like asking an applicant for the keys to his or her home.
Approximately 20 state laws prohibit employers from asking for social media passwords. In all states, it can be criminal under federal law.
5. Keep your process consistent.
You don’t need to look at social media profiles for every position in the company. But it's also dangerous to do so only when you feel like something may be off.
Selective social media reviews can be seen as based on discriminatory factors. Indeed, the gut feeling may be based on implicit bias if the person is different from you - whoever you may be.
So decide before you begin recruiting for a position whether a social media screening will be part of the process and document it. Just don’t do it because of who the person is.
6. Print out any social media posts that you intend to consider.
We all know that individuals may delete or hide posts from the public; therefore, print out anything you find as soon as you see it. Note what disturbs you about it. This preserves the argument, by negative implication what you did not consider, namely, an applicant’s membership in a protected group.