by Brenna Johnson 

If you’re like most employers today, you’re using social media websites to review employee candidates before deciding whom to hire.

Social media will often reveal things about a candidate that you can’t uncover in a traditional interview. But therein lies the rub. Some of what you find out could leave you open to charges of discrimination.

By scanning an applicant’s social media page, you potentially can learn: an applicant’s ethnicity, religion, national origin, age, marital status, pregnancy status, disability and sexual orientation. These are all things you are prohibited from considering in the hiring process. Once you’ve seen that information, it’s hard to prove you didn’t use it in making your final hiring decision.

So, what’s an employer to do? Here are some recommendations allowing you to conduct your social media screening and still avoid discrimination claims and lawsuits:

  1. Have a specific policy in place regarding social media and hiring, and apply the policies consistently – research every candidate’s online profile, or don’t review any of them. If you only research some candidates, it could leave you open to allegations of discrimination. Also, identify how various social media sites will be searched and what criteria will be considered in the hiring process. For example: insulting others, aggressive or violent acts, unlawful activity and discriminatory activity, among others. Be sure all items correlate with a candidate’s fitness for the job.
  2. Assign an individual who is not involved in the hiring process to review social media sites. That could be handled in-house, or you may hire a third-party vendor to conduct background checks. However, if you employ a third-party vendor, you trigger the Fair Credit Reporting Act, which requires written authorization from applicants prior to the investigation.
  3. Inform applicants that you will be looking into their social media presence and identify the sites you’ll be searching. Don’t ask for log-in credentials or passwords – that’s illegal in California and a number of other states.
  4. Make sure whoever is conducting the background search supplies the hiring officer only with information that may be lawfully considered in the hiring process.
  5. Retain all records associated with hiring decisions, including computer printouts of social media sites reviewed and any disqualifying information obtained through those sites.
  6. Of course, you should never attempt to circumvent an applicant’s privacy settings to collect social media information. Such methods could include impersonating a “friend” or creating a false profile to gain access to the applicant’s information.

Brenna Johnson
Brenna Johnson is an Employment Law Attorney,Workplace Investigator and Human Resources Consultant. Brenna is devoted to assisting California employers navigate California’s employment and labor laws.