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To Stalk or Not to Stalk . . . That Is the Question – Using Social Media for Applicant Review

Now more than ever, employers are using social media to screen job applicants. According to a 2018 survey, 70 percent of employers use social media to research candidates. Using social media to research job applicants can provide you with useful information, but it can also get you into trouble.

When you review an applicant’s social media account, such as Facebook, LinkedIn, Twitter, etc., you may learn information regarding the applicant’s race, sex, religion, national origin, or age, among other characteristics.

As our readers are aware, a variety of state and federal laws, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act prohibit employers from choosing not to hire a candidate based on a number of legally protected classes. Just as it would be unlawful to ask an applicant if he or she has a disability during an interview and fail to hire that applicant based on his or her disability, it would also be illegal not to hire an applicant because you observed a Facebook post in which she expressed her hope to be pregnant within the next six months. 

Consider the following best practice tips for using social media to screen applicants:

  1. Develop a Policy and Be Consistent – Implement a policy detailing which social media websites you will review, the purpose of the review and type of information sought, at what stage the review will be conducted, and how much time you will spend on the search. Applying these policies consistently will help to combat claims of discriminatory hiring practices should they arise.

  2. Document Your Findings – Save what you find, whether it is a picture or a screenshot of a comment the applicant made. What you find on social media can disappear as easily as you found it. Protect your decision by documenting what you find. In case the matter is litigated, it can be produced later.

  3. Wait Until After the Initial Interview - Avoid performing a social media screening until after the initial interview. It is much easier to defend a decision not to interview or hire an applicant if you do not have certain information early on.

  4. Follow FCRA Requirements - If you decide to use a third party to perform social media screening services, remember that these screenings are likely subject to the Fair Credit Reporting Act requirements because the screening results constitute a consumer report. This means the employer will be required to: 1) inform the applicant of the results that are relevant to its decision not to hire; 2) provide the applicant with the relevant social media document; 3) provide the applicant notice of his or her rights under the FCRA and; 4) allow the applicant to rebut the information before making a final decision.

  5. Do Not Ask for Their Password – Many states have enacted laws that prohibit an employer from requesting or requiring applicants to provide their login credentials for their social media and other internet accounts. Although some states still allow this, the best practice is not to ask for it. Further, while it is not illegal to friend request a job applicant, proceed with caution. Friend requesting a job applicant (and assuming the applicant accepts the request) may provide you with greater access to the applicant’s personal life. Many people categorize portions of their profiles as private, thereby protecting specific information from the public’s view. If you receive access to this information you may gain more knowledge regarding the applicant’s protected characteristics. If you are going to friend request applicants, you should include this in your written policy and apply this practice across the board.

© 2019 Foley & Lardner LLP

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About this Author

Jacqueline A. Hayduk Associate Foley Detroit  labor and employment
Associate

Jacqueline Hayduk is an associate and litigation lawyer with Foley & Lardner LLP. She is a member of the firm’s Labor & Employment Practice.

Prior to joining Foley, Jacqueline served as an Assistant Prosecuting Attorney with the Sexual Assault Team at the Wayne County Prosecutor’s Office. Jacqueline has tried numerous felony jury trials in the Third Circuit Court.

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