Social Media Screening – Is it Legal?

We live in a very digital world today where information about anyone or anything is often very accessible. So let’s chat about that recent graduate who just applied for an entry level position at your company … As a potential employer, can you view her Facebook profile or Twitter account that’s published for all to see?

You can, yes, but it’s certainly not recommended. Here’s why:

Social profiles contain information that you as the potential employer would never see on a resume or cover letter. Social media opens the door to learning much more about a candidate such as their religion, sexual orientation, and race – things that are irrelevant to filling the position and adequately performing the job’s functions.

In “researching” this particular information, you can put your company at risk for various discrimination claims. Online employment discrimination is sometimes conscious and sometimes unconscious, meaning that a hiring manager or HR professional might innocently check a Facebook profile or Twitter account without realizing the page’s information affects their hiring decision.

Current policy does create legal risks for those scanning through social media pages during the hiring process IF managers are caught using that information in a discriminatory fashion. Here’s an example: let’s say you’re an employer in the state of Minnesota that prefers to employ healthy and responsible individuals. You decide not to hire a specific woman because her Facebook profile has countless pictures of her drinking alcohol and smoking cigarettes.

In Minnesota, it is unlawful for an employer to prohibit a prospective employee from using lawful consumable products, such as alcohol and tobacco. If your candidate catches wind of why they were not hired, or someone on your team accidentally lets them know – you’re in big trouble! And, Minnesota is not the only state. More than half of the U.S. states prohibit employers from taking an adverse employment action based on an employee or potential employee’s lawful conduct on their own time.

Because fairly (and legally) monitoring a candidate’s social media profile is difficult to monitor and manage as an employer, it is recommended that companies explicitly instruct and train hiring teams to not look at a candidates’ online presence. More often than not, it’s better to be safe than sorry.

If you need to access online information for any reason, employers should consider hiring a third-party to review the candidate’s social media profile and filter out any information about membership in a protected class, so that the profile and information you are looking at as a hiring manager is only information that can be lawfully considered in the hiring process.

Social media compliance is sticky, as is employment law. If you have a question or need help with a particular situation, contact Employer Solutions Plus at 727-698-6207.