Should Companies Screen Their Job Applications’ Social Media?

This has become an increasingly important question since surveys reveal that more than half of employers inquire into a prospective employee’s online social media activity during the hiring process.  The insurance industry is no exception.  However, there are a number of pitfalls involved in such screening.  The major ones are:

Pitfall No. 1:
Only Performing Social Media Background Checks On Certain Applicants

Employers who arbitrarily determine which applicants will be subject to social media screening are subject to the risk of a successful employment discrimination claim in the same way that they would be liable, for example, for randomly performing criminal background checks on some applicants or arbitrarily deciding that certain minimum job requirements, like holding a degree, are only applicable to certain candidates for employment.

Pitfall No. 2
Inconsistently Reviewing Social Media Postings or

Taking Into Account An Applicant’s Protected Status

An employer that views applicants’ social media postings to determine whom to interview may discover a Facebook posting indicating a protected status, for example, someone who has a disability, or is of a certain religion, nationality, or race.  In a discrimination lawsuit, the employer would then be left to argue that although it had knowledge of the applicant’s protected characteristic, it did not take such information into account when declining to invite the applicant to interview.

Pitfall No. 3
Hiring a Third Party to Perform Social Media Screenings
But Failure to Follow the Procedures of the Fair Credit Reporting Act

Using third-parties to screen applicants would subject the employer to the requirements of the Fair Credit Reporting Act (FCRA), a federal law governing employment decisions that rely upon consumer reports.  The FCRA imposes stringent requirements on an employer who refuses to hire based, in part, on social media information, which is covered by the FCRA.

Pitfall No. 4
Requiring Applicants to Divulge Their Social Media Passwords

A not uncommon practice, asking for passwords is the equivalent of an employer asking for the keys to the applicant’s house.  Aside from obvious privacy issues, this practice could violate many existing and proposed state laws prohibiting employers from requiring an applicant to divulge social media user ID’s and passwords.

Obviously, extreme care should be taken by any employer using social media to evaluate applicants for employment.