Checking Potential Employees’ Social Media Accounts Could Lead to Legal Trouble

Checking job candidates' social media is becoming much more common.
But there are risks involved. Photo: chainarong06 / Shutterstock.com

According to a 2016 CareerBuilder survey, the number of employers using social media to screen candidates has increased 500 percent over the last decade. Sixty percent of employers use social networking sites to research job candidates.

But that’s just the average: in the IT field, 76 percent of recruiters check candidates’ social media. In financial services, the number is 59 percent, and in professional and business services, it’s 55 percent.

Even though most hiring managers aren’t intentionally looking for negatives—they’re more often looking for information that supports a potential employee’s qualifications for the job—it could still lead to legal trouble.

“There are some serious repercussions of having employers cyber sleuth on social media,” warned labor and employment attorney Jason Habinsky of Haynes and Boone.

By researching a candidate’s social media presence, a hiring manager “loses the right to claim he never looked into information” about a candidate belonging to a demographic category protected by anti-discrimination laws, Habinsky added.

However, some of Habinsky’s clients have begun allowing only designated HR professionals or outside agencies to look at job candidates’ social accounts. “They raise only the red flags that the companies feel like is really important to know,” he said.

But sometimes social media snooping efforts “gather information that is advantageous to the employee—they have a lot of friends, they commit time to charitable causes,” Habinsky said.

But Richard Glovsky, another employment lawyer, said that the idea of designated HR people serving as human screens from potentially discriminatory information struck him as overkill.

Glovsky said that most discrimination cases are filed by plaintiffs against an employer who actually hired them, not one who turned them down.

He added that the odds are higher that a manager will here about a prospective employee’s excesses indirectly, because social media is monitored constantly by today’s Millennial employees. 

Potential new laws in Massachusetts, New York, San Francisco, and other cities that bar employers from asking candidates about their prior salaries also bar them from searching the internet for that information. This could potentially be argued to include searching social media for candidates.

Bruce Millman, the Office Managing Shareholder at Littler Mendelson’s New York office, said that “doing any kind of review is fraught with the possibilities of violating the law,” and the new rules only raise those risks. However, he added, that increased risk may be a rationale for challenging those rules.