It’s becoming more and more common in human resources to check out a candidate’s social media profiles before making that final hiring decision. When they do so, however, they need to be very mindful of the legalities surrounding the information gathered from social media searches. Thallen Brassel, of Nelson Mullins Riley & Scarborough LLP, says that doing social media searches can “open a Pandora’s box, because you might find out more information than you necessarily wanted to know.” Here are four things you should know before you do a social media search on your job candidate.
1. The Law Regarding Social Media Searches. While federal laws might not regulate whether or not you can seek out information about a candidate from their social media presence, some states do have regulations.
In approximately 16 states, Thallen says, state laws require hiring professionals get permission from candidates before doing a social media search. In about 20 states, no permission is required, but the information found has to be treated like information from a credit report. This means that HR professionals need to allow the opportunity for the candidate to review the results and report or rebut information that might be found there.
2. Equal Opportunity Laws. Quite often, the information found through a social media search will yield information that could violate equal opportunity laws. This means that denying employment based on discriminatory information is a real threat, and one that HR professionals need to be mindful of. For this reason, Thallen says it is a good idea to conduct the social media search after the face-to-face interview. Even better, Thallen says, is to “create a separate HR function that reviews social media information and keeps it separate and confidential from the person who makes the hiring decision.”
3. Social Media Is Not Necessarily Reflective of Just That Individual. The nature of social media means it is an interaction with the world that may or may not be accurately reflected by what is found on social media sources. There is also always the threat of someone’s social media account being hacked, which is why many states require the candidates be allowed to review and rebut information found.
4. You Should Do It the Same Way for Everyone. Consistency in how you conduct social media searches is key. To prevent the possibility of being accused of relying on information not legal for use in the hiring decision, it’s a good idea to conduct the social media search at the same point in the hiring process for all candidates.
Thallen stresses, “It’s really important that HR professionals are on top of all the state laws.” By knowing what the law says, employers can protect themselves from violating the law or the candidate’s right to privacy. Conducting social media searches on candidates is definitely prudent, but the information found must be treated according to applicable laws, and sometimes taken with a grain of salt. The information found can be used in making the hiring decision, but usually should not be the only basis for choosing to hire or not hire a candidate.