Tread Lightly When Investigating Applicants’ Social Media Activity

Social media activity can reveal a great deal about an individual and many prospective employers now routinely review public posts, photos and other applicant web activity. Recently, however, some employers have demanded login credentials to enable review of non-public social media material.

It’s understandable that companies wish to have a complete picture of a prospective candidate’s background.  But, there are reasons to be cautious of conducting in-depth background checks into applicants’ private social media activity, and, in particular, for demanding account user names and passwords:

    • Employer’s need to ensure that their proposed screening activities will not violate the terms of services of the applicable social media service.  Facebook, for example, has asserted that the actions of some employers would constitute and has even asserted that it could consider legal action against employers who make such demands of employment candidates.


    • The practice may also violate law. Recently, Maryland became the first state to pass legislation that prohibits companies from requesting applicants to provide them with their social media passwords.  Other jurisdictions seemed poised to follow, with legislation under consideration at the federal level and in a number of states, including Illinois, New Jersey and California. Also, senators from New York and Connecticut have asked the Equal Employment Opportunity Commission and the Department of Justice to investigate the controversial practice.


    • Some commentators have suggested that reviewing private activity on an applicant’s social media accounts could also leave a company vulnerable to employment discrimination claims, since such an investigation might allow an employer to learn facts on which it is not permitted to make employment decisions. This is another potential risk that employers should take into account when considering this type of background checking.


    • Finally, and perhaps, most importantly, many individuals have a negative view of the practice.  Companies that engage in such in-depth reviews of candidates private social media activity may find themselves with a more limited pool of qualified applicants.




For all of these reasons, founders and companies should tread lightly when investigating a candidate’s online activities, especially their private conduct on social media sites, and should seek counsel on any background checking activity that they propose to conduct.

This post on Privacy, Social Media and Employment Practices was authored by Jacqueline Klosek.




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