White Paper - Are Social Media Reports Legal?

This question, or some variant of it, is often heard when the subject of social media screening arises. Although utilizing information posted by candidates on social media to make better and more informed hiring decisions continues to gain traction with many employers, Human Resource (“HR”) professionals voice understandable concern over whether it’s permissible to consider applicants’ and employees’ social media posts when making employment decisions and, if so, how the information is to be handled.Here are a few common questions that we hear, and our thoughts in response.

Q. Is it legal to consider a candidate’s social media posts?

A. The key to understanding the answer to this question lies in the fact that ESS only reports publicly available information posted by your candidate. As a general principle, employers can consider any public information about a candidate unless doing so is specifically prohibited by a law. To date, there are no laws that explicitly say, “Thou shalt not consider public social media posts of your candidates for employment.” 

There are state and local laws which prohibit employers from compelling candidates to disclose their passwords or to “friend” the employer for the purpose of enabling the employer to look at private posts, but this is an entirely different scenario. ESS does not ask for the candidate’s password, nor do we try to “friend” the candidate.We only examine information that the candidate chooses to make public on a social media platform. In other words, anyone in the whole wide world could look at the same information that we present to the employer in our social media report –if you know where to look and how to find it.

There are a few states, like Colorado, California,Connecticut, Illinois,New York, and North Dakota, that forbid employers from terminating employees that engage in lawful off-duty conductor speech. Whether these off-duty conduct laws protect public social media posts remains to be seen. In many cases, the social media information we report is about unlawful activity; e.g., expressing a desire to engage in unlawful conduct (e.g., the candidate says he or she wants to injure someone, or discusses consuming illegal drugs), or making a racially derogatory comment that would be problematic in the workplace.

And –of course –an employer should not use public social media posts to discriminate against candidates in violation of federal or state equal employment protection laws. This holds true for any information obtained about a candidate, whether that information is obtained in an application, an in-person interview, or a background check. [F1]

As with any information an employer obtains –whether through an interview or a background check –an employer is well advised to use the information as a basis to initiate a meaningful, good faith conversation with the applicant. By conducting an individualized assessment, allowing the applicant to explain her words or his conduct, and by considering the totality of the circumstances, the HR professional will be in the best position to comply with Equal Employment Opportunity and other similar state employment laws.

Q. What sort of information can I expect to see on a social media report?

A. ESS provides information that, in our experience, is most relevant to employers. We flag social media posts that show expressions of racism, intolerance of protected classes, such as those who are disabled or that practice a certain religion, violent behavior, potentially unlawful activity, and those that are sexually explicit. Public expressions of this sort in the business context are often violations of an employer’s corporate ethics code,and HR professionals may be interested in dialoguing with candidates over whether these posts would be indicative of risky behavior on the job.

Q. Are there any compliance requirements I must abide by when using social media reports?

A. Yes. Social media reports obtained from consumer reporting agencies like ESS are considered “consumer reports” under the federal Fair Credit Reporting Act (“FCRA”), so you must comply with federal and state consumer reporting laws, as you would with any other background check you obtain. This means you can only order a social media report if you have a “permissible purpose.” The most common “permissible purpose” is for employment. Before requesting a report from ESS, you should disclose to the candidate in writing that you are obtaining a “consumer report” from a “consumer reporting agency.” (This is the legal way of saying you are getting a background check from a background screener.) You should obtain the candidate’s written authorization to obtain the consumer report from ESS. And if you decide that you may not proceed with the candidate because of something contained in the social media report, you need to provide the candidate with a copy of the report and a Summary of Your Rights under the Fair Credit Reporting Act. (This is known as the pre-adverse action process.) This allows the candidate to dispute any inaccuracies in the social media report. (For example, the candidate may claim the post was not on his social media account.) If you then decide not to proceed with the candidate, you must provide an adverse action notice.

This publication is provided only for educational purposes; it should not be relied upon as legal advice, and it should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used for resolving disputes or managing risk. Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship. Copyright 2019 © Employment Screening Services, Inc. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of ESS.

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[F1] The discerning reader may recollect that attributes such as age, sex, and race are often used by background screeners to accurately match records to applicants. Without that information, screeners would run the risk of misattribution. Although the Equal Employment Opportunity Commission generally discourages employers from inquiring about class information, it also recognizes that there is sometimes a legitimate business need to obtain this information. Employers who are concerned about potential EEO violations may wish to order social media checks after a conditional offer of employment has been made.