Social Media and Hiring Decisions Are Not a Good Mix
Don’t check that applicant’s Facebook pageBy Judy Malmon, J.D. | Last updated on January 24, 2023
Use these links to jump to different sections:Julie Pace, and this is not a good practice.
No Trolling“I’m always trying to explain to recruiters who are hiring that you don’t necessarily want that social media information. You might find out more information than you’re supposed to have about a qualified candidate,” says Pace, noting that you may learn information that would implicate the Americans with Disabilities Act (ADA), or give rise to a discrimination claim. “If you learn the job applicant have a health issue or they’re in a recovery program for an addiction, then it may be hard to get that information out of your head in making decisions.” Pace recommends that hiring managers stay focused on what she calls SKEP: Skills, Knowledge, Experience, Performance. “You should have a good list of interview questions, and share them with your manager,” she says. “Ask the questions that matter to your company, so you don’t need to rely on other ways of discovering something through social networks.” While it isn’t uncommon to search someone’s social media profile or ask for their Facebook password during the hiring process, Pace believes those employers go too far. Recently, interpretations of the Computer Fraud and Abuse Act, as well as the Electronic Communications Privacy Act, have made it a crime to log in to someone else’s account—whether or not they consent. Facebook further has updated its terms of service to expressly prohibit logging in as someone other than yourself.
Background Checks Offer a Better OptionAnother option for looking into a candidate’s history is to do a background check. An individual must give their consent to have a background check run on them, and they are entitled notice of what, if anything, comes up in the search. “By law, you have to give notice so they can go fix it if the service doing the background check has it wrong,” says Pace. “It might be under the wrong name, for example. Lots of people don’t know that this notice is a legal requirement, and this can be the basis of a lawsuit.” If you have questions about the use of social media, or how to appropriately gather information in the process of making hiring decisions and vetting applicants, talk to a reputable and experienced employment law attorney. For more information about this area, see our overview on employment law for employers and discrimination.
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