Proceed with Caution When Searching Applicants' Social Media

Recent headlines involving inappropriate and highly offensive use of social media provides employers with the opportunity to examine hiring practices. Supervisors are often tempted to search Google, Twitter, or Facebook to learn more about candidates as part of the screening process, but before you proceed, consider the ramifications.

One risk of doing this is the interviewer may discover things about an applicant that can’t legally be used in making a hiring decision (e.g., age, religious beliefs, political affiliation, medical conditions, and disabilities). Even if the employer does not use the knowledge in the hiring decision, the candidate could challenge an adverse employment decision made for a legitimate, nondiscriminatory reason because of the information the employer obtained.

If online searches are performed, the employer should establish some rules. First, an individual’s right to privacy should be protected and searches limited to information in the public domain. Because information in the public domain is available to whomever chooses to access it, the employee does not have a reasonable expectation of privacy that would restrict the employer from conducting the search. Employers should not ask an applicant to provide usernames and passwords in order to access private sites. Information protected behind passwords or available only to a person’s family and friends likely is intended to be private and access by the employer could be considered unreasonable.

Second, the person(s) who will be making the decision whether to hire an applicant should not conduct the online search. It should be done by someone not involved in the decision-making process (e.g., HR employee). This will allow HR to verify the information related to the person described in the search is in fact the applicant, filter the results, and only share job-related information. Any information that may lead to allegations of illegal discrimination under Title VII and the Texas Commission on Human Rights Act (race, color, national origin, sex, and religion), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), Pregnancy Discrimination Act, and other federal and state laws should be eliminated.