In today’s technologically driven world, it’s no secret that most job applicants use social media in at least some form. In fact, many even apply for jobs directly through social media sites, such as LinkedIn. But what about the rest of their online activity? Can employers use it to make hiring decisions? Should they?
The issue of whether employers can legally (and ethically) gain an otherwise unavailable glimpse of their applicant through social media is not a new one. We have seen the ramifications of social media usage in all contexts for several years. And while much of that news had been focused on higher-level education and what universities and colleges may or may not do regarding students’ social media accounts, new state legislation seems to be shifting the focus to employers’ actions.
Some Background
The story of Harvard University rescinding the acceptance offer of a student after finding out he had used racial slurs years prior to his application permeated social media platforms and mainstream news a couple of years ago. As a basis for its actions, Harvard relied on the fact that it “reserve[d] the right to withdraw an offer of admission.” On the other hand, the prospective student apologized for his previous actions and contacted the college’s Office of Diversity Education and Support to “begin a dialogue that [he] hope[d] will be the foundation of future growth.”
This story drew mixed reactions and served as a stark reminder that comments we make and actions we take online, even those we deem “private,” can not only resurface, but also be used against us. And it wasn’t the first time something like this was in the news. Years before, Harvard pulled acceptance offers from ten incoming freshmen after they reportedly made racist and sexually offensive comments in a Facebook group.
Social media usage consequences have also touched the federal government in recent years. In 2019, a controversial State Department policy required visa applicants to the United States to submit information about social media accounts they had used in the previous five years. This account information gave the government access to photos, locations, dates of birth, and other personal data commonly shared on social media. While challenged in the past, the policy has remained intact. In fact, in September of 2023, a federal judge upheld the policy.
In the recent lawsuit, the plaintiffs contended that the “Registration Requirement” infringed on the expressive and associational rights of both their U.S. and non-U.S. members and partners. While the district court recognized the rights of U.S. citizens to receive information and associate with non-U.S. individuals, it dismissed the plaintiffs' claim that the Registration Requirement hinders these rights due to the social media impact of potential visitors to the United States.
Employers, Social Media, and Increased Legislation
Many employers seek to review the social media posts of employees and applicants, either before or after making a job offer, in an effort to safeguard their interests. The benefits of these reviews include ensuring the applicant is a strong fit, not just pertaining to skills and/or education, but also to culture; verifying professional and academic information on the applicant’s resume or job application; and mitigating the risks of hiring someone who could be a detriment to the company’s reputation. However, issues abound in light of the strict federal and state laws regulating employment background checks.
Still, this all seemed to be somewhat fair game before, as long as employers remained in compliance with the Fair Credit Reporting Act (FCRA) and the guidelines established by the Equal Employment Opportunity Commission (EEOC). However, amidst increasing privacy concerns over the past couple of years, the tide could be starting to shift. While employers may still examine an applicant's online presence on different social media platforms, there is a growing trend in various states to restrict them from demanding that applicants disclose their usernames, passwords, or provide access to their personal accounts in the presence of the employer. Underlying much of this shift … privacy.
This year, in particular, we have seen more and more states implementing laws protecting an individual's privacy. At their foundation, these comprehensive privacy laws address a growing concern for the protection of individuals’ personal data and online privacy rights. With the rapid advancement of technology and the widespread collection, sharing, and utilization of personal information, there is a broader recognition that individuals need better control and safeguards for their data overall.
The reasoning and intent behind these comprehensive privacy laws may also limit the extent to which an employer can access an applicant’s social media profiles. Additionally, some states are now getting even more specific. For example, as of March 12, 2024, New York employers will be prohibited from accessing the social media accounts of their employees. They also cannot fire or discipline an employee for failing to disclose private social media information or refuse to hire an applicant because the applicant will not disclose information regarding their personal accounts. The newly enacted law modifies New York’s labor law and will prevent employers from asking, mandating, or pressuring an employee or job applicant to share their social media usernames and passwords.
There are some exceptions. The new law does not prevent employers from viewing information about an employee or job applicant that is publicly available and accessible without login information. Employers are also permitted to view social media posts, including images, videos, or messages, that have been voluntarily shared with them for purposes of reporting misconduct.
Other new laws focus specifically on preventing discrimination and retaliation against an employee pertaining to their political views as posted on social media. In Montana, a new law that became effective on October 1, 2023 (signed into law by the governor on May 2, 2023), prohibits employers from retaliating or firing job applicants or employees, respectively, for expressing legal free speech on social media. While these provisions are new, the overall perspective regarding social media is not for the state, which already has a law protecting employees from employer interference with personal social media accounts.
In addition to adhering to privacy laws and state-specific social media legislation, employers must also take into account several important factors. Discrimination laws mandate that employment decisions should not be influenced by information that might lead to discrimination based on factors such as race, religion, gender, or other protected characteristics. And social media posts are ripe for interpretations that may include these factors, giving, at a minimum, the perception of bias.
7 Tips for Employers Regarding the Use of Social Media
It's essential for employers to strike the right balance between considering an applicant’s online presence and respecting privacy and anti-discrimination laws. Social media unquestionably provides a wealth of information about individuals faster than many other searches and serves as a valuable resource for assessing character. However, employers must exercise caution to ensure that such searches respect applicant privacy and do not violate the federal Fair Credit Reporting Act (FCRA), the guidelines established by the Equal Employment Opportunity Commission (EEOC), or applicable state laws.
While this patchwork of laws and overarching policy concerns may be overwhelming, the following employer tips can help employers navigate it all:
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Develop and implement clear social media screening policies and practices to ensure a fair and lawful hiring process.
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Throughout the process, maintain respect for candidate privacy by ensuring that social media assessments solely rely on publicly accessible user-generated information and do not include third-party content or content from password-protected platforms.
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Remember that when an applicant’s social media settings are configured as public, that information is accessible to anyone, including prospective employers. However, if their profile is set to private, employers must refrain from attempting to circumvent these settings to avoid potential legal liabilities in the future.
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To help prevent potential bias or discrimination, consistency is crucial when considering social media in the hiring process, and this practice should be uniformly applied to all applicants.
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Focus on information directly relevant to the job at hand, such as professional qualifications, work-related posts, or any criminal behavior that could impact the role.
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Comply with any regional requirements to notify applicants if they intend to review their social media profiles during the hiring process, ensuring transparency in the evaluation process.
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Due to the Fair Credit Reporting Act’s regulations on employee background checks, enlist the services of an independent third-party background screening company to perform social media investigations.
How We Can Help
Orange Tree is an expert in background screening services, including social media searches. In a typical scenario, clients will identify the derogatory criteria they are concerned with, and then Orange Tree will only report on those criteria. This may include threats or acts of violence, sexually explicit material, or racist or discriminatory behavior, among others. Not only do we know what we can search for, and report on, but we serve as an extra layer between the employer and applicant. Schedule time to speak with our team to learn more and to assist you in navigating the intricacies of these searches.
