Social Media Checks: Due Diligence or Setting Yourself Up for a Lawsuit?

The growth of social media use is giving human resources departments a window into their candidates and what makes them “tick.” But is that a good thing?

Let’s look at a hypothetical where you just conducted a great interview with what seems to be the perfect candidate. To gain some more insights you decide to Google the candidate and from that search check their various social media platforms. That seems pretty basic, right?

The problem is, you are putting yourself in a tough position as unlike a traditional background check, social media checks reveal a lot about a candidate’s day-to-day activities, background, likes interests and yes, things protected by the Equal Employment Opportunity Commission like age, gender, sexual orientation, marital status, religion, and race.

How do you un-know something you can’t legally consider when making your selection… but something that (as much as you wish it didn’t) influences your decision.

And then IF you select another candidate, does the rejected (insert issue here, i.e. pregnant) candidate have legal recourse? He/she may indeed. It will depend on what is in and what is not in your documentation. Regardless, you are best to avoid it as it is indeed a gray area without a lot of legal precedence and both parties will have an uphill battle proving their side of the case.

If you feel you must access a person’s social media platforms to receive a thorough picture of a candidate, you have a couple options. The first, though still not full-proof, is to have a non-decision maker perform the review. They can relay only the pertinent information and exclude all protected info. This has risks as you are still allowing someone within the company to look up and present the data.

The other option is to hire a background check company. These companies, with permission of the applicant, perform checks very similar to a traditional background check. The resulting report will tell you if there are any red flags, but exclude all protected information. It also will comply with the Fair Credit Report Act, the main act dictating the legalities of background checks.

With all this gray area, remember you absolutely cannot ask for username and passwords to get around privacy settings. If you require employees and applicants to give you this information you are breaking federal laws.