The Risks of Pre-Employment Social Media Screening

An increasing number of states have recently passed laws that prohibit employers from obtaining passwords to a job applicant’s social media accounts. Such legislation highlights companies’ interest in finding out as much as they can about potential and even current employees. Despite the temptation to screen social media, it is much easier for an organization to defend against a discrimination claim when it never knew of the discriminatory grounds in the first place. To minimize the risks, some employers have sought to allow only non-decision-makers to do such searches. In these cases the searcher will gather the online information and pass on to the decision-makers only that which is permissible for consideration. This strategy provides the organization with the legitimately helpful facts while arguably protecting it from a discrimination claim. However, the strategy isn’t without risks, as an applicant could argue that the employee completing the investigation tainted the process after learning information the employer is trying to keep from the decision-makers. Employers should also realize that there is a fine line between a background check and a pre-employment social media screening. If the latter qualifies as a background check, then the company needs to comply with the FCRA, including providing applicants with a disclosure that a background check will be performed and obtaining their authorization to proceed.

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