To Look or not to Look: Should you Check Applicants’ Social Media Profiles During Your Hiring Process?

Metropreneurial Legal Insights — By on February 20, 2014 at 8:00 am

Hiring new employees is a major investment for any business, large or small. When you hire a new employee, you understandably want to do your due diligence and find out as much as you can about your applicant. You can call his or her references or former employers, but another easy, foolproof way to learn about an applicant is to look through his or her social media accounts, right? Well…maybe.

Over the past two-to-three years, states have gradually passed laws prohibiting employers from requiring applicants to provide access to their social media accounts. Ohio has such a bill brewing in the legislature now that will likely become law soon, so it’s best not to ask applicants for their social media passwords. But you probably do not do that anyway. If anything, you maybe take a quick peek at Facebook, Twitter or Instagram to see if you can learn anything about your new applicant.

Doug Oldham

Doug Oldham

If you’re doing so, there’s nothing wrong with that in and of itself. If an applicant has a public social media profile, you (and everyone else in the world) can view it and draw your own conclusions about what you see. In fact, if you are being diligent, you almost need to take a look at publicly available information, since you may be held accountable in the future if you do not. If you hire an employee without performing an adequate background check and the employee goes on to hurt someone down the road while working for you, you might get sued for negligently hiring him or her. Besides, users can easily change the privacy settings on social media accounts, so any applicant who doesn’t want prospective employers to see things on his or her accounts should have the good sense to make them private.

On the flipside of the argument, though, come a group of university studies concluding that maybe you shouldn’t look at applicants’ social media profiles. Carnegie Mellon researchers sent employees a batch of dummy resumes and created a batch of corresponding social media accounts. The researchers found that dummy applicants identified as Christian in their social media profiles fared notably better than dummy applicants identified as Muslim in their social media profiles at moving to the next step in the hiring process. (Race, age, disability and sex were not variables in Carnegie Mellon’s study). The moral of the story is that looking at personal information contained in social media accounts could lead to more discrimination in hiring, or at least accusations of discrimination from those you do not hire. Obviously, if you don’t look at an applicant’s social media accounts, you can’t be perceived as having taken a discriminatory action based on what you saw posted there.

Moreover, North Carolina State researchers concluded that screening applicants’ social media accounts could alienate potential employees and make it more difficult to attract top candidates. In one study, 175 participants were told their Facebook accounts were reviewed for professionalism. Two-thirds of the participants reported that they found the employer less attractive as a result and that they felt their privacy was invaded. In a second study, approximately 200 participants were asked to picture a prospective employer reviewing their Facebook profiles for professionalism. Half of the participants were told they got the job and half were told they did not. Sixty percent of participants in each group reported that they had a negative review of the employer as a result of their privacy being violated, and over 50 percent felt more likely to take legal action against the employer as a result.

The takeaway from all this is that you can freely look at any publicly available information, including social media profiles, but first you should contact your attorney and come up with a sensible game plan for searching this information that won’t get you into trouble. Moreover, be smart about how you conduct any such search. Don’t ask an applicant for his or her social media passwords or try to pry into private accounts where the owner didn’t intend you to look. Don’t tell an applicant you plan to look at his or her social media accounts or that you made a hiring decision based on such accounts, as it may engender bad will or even legal action – even if you actually hire the applicant. And above all, don’t use any information you find in an applicant’s social media accounts to take negative action against that applicant for unlawful, discriminatory reasons. If you have any questions about whether you should look at applicants’ social media accounts in general, or what actions you should take based on what you’ve seen on a specific applicant’s social media accounts, remember that you can always contact your attorney for additional guidance.

Doug Oldham (5 Articles)

Doug Oldham is an attorney in Barnes & Thornburgs Labor and Employment Law Department. He concentrates his practice on employment litigation discrimination.


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