Social Digging

Where is the legal line when it comes to using social media to evaluate job candidates?

Back Web Only Feb 24, 2015 By Coral Henning

We’re hiring a new office manager and looking for someone trustworthy and friendly. Going through applications, we found that some of the hiring staff were able to view applicants’ Facebook profiles, either due to mutual friends or because of the applicant’s privacy settings. Are there any legal reasons not to do this? Can we raise questions during interviews based on the information we’ve learned via social media?

You’re right that Facebook and other social media sites can provide good information when evaluating a candidate. Such screening has become very common among employers. According to a 2014 Career Builder survey, 43 percent of employers researched prospective hires on social media in 2014, with more planning to start. It can help you learn if the candidate is a good fit for your company; it can also help you avoid candidates who display illegal or inappropriate actions, bad-mouth former employers, lie about absences or use discriminatory language, among other problems.  

But you’re also right to be wary of possible complications. Using this information could be dicey. One major potential problem is exposure to prohibited information about your applicants. The personal information shared on sites like Facebook is very likely to reveal factors you are not permitted to consider when making hiring decisions, such as race, religion, family status, age and the like. This knowledge could expose you to accusations of bias if an applicant is not hired. This factor alone is probably a good reason to avoid viewing the pages or using the information to craft interview questions.

Accessing information without permission might also open you up to claims of invasion of privacy. Although this area of the law is relatively new and still evolving, it is legal in all states to search out and view public social media pages (pages that the poster has set to “public” or “anyone” in their privacy settings). Social media information that is available through mutual friends would probably also be fine, although it’s unclear exactly how California’s privacy laws would apply.

Related: Poll — Should employees investigate applicants on social media?

California law has not defined exactly what privacy rights an individual has in their Facebook account, but at least one court (Juror No. One v. Superior Court, 206 Cal. App. 4th 854 (2012)), has suggested that it depends on the privacy settings the user selects. It’s possible that the next judge will consider information shared only among friends to be off-limits — and you probably don’t want to be the test case.

Federal law could also apply. A New Jersey federal court ruled that under the federal Stored Communications Act (18 U.S. Code § 2701), it is illegal to access private Facebook posts without permission, but also ruled that any person involved in a private online conversation can voluntarily share screenshots with their employer (Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 661 (D.N.J. 2013)).

In Ehling, a hospital fired an employee based on complaints and comments she posted to a private Facebook group, after another member of the group informed their mutual employer of the comments. The court allowed the employer to use this information to terminate the employee, since the information was voluntarily provided by an “authorized user.” However, the same court ruled that under some circumstances, an employer deliberately seeking out such private postings could violate New Jersey privacy laws.

One thing that is definitely off-limits is the applicant’s Facebook username and password. As Facebook became ubiquitous, some companies began requesting or requiring applicants to either provide them with their Facebook passwords, or log in to Facebook on the spot and let the interviewer look through their account. In California and a number of other states, these requests are now illegal (California Labor Code § 980; National Conference of State Legislatures, “Employer Access to Social Media Usernames and Passwords”).

Another approach is to request that applicants and employees “friend” company representatives, adding them to their approved contacts and thereby giving them access to private posts. In California, employers are not explicitly prohibited from asking employees or prospective hires to “friend” them, but several other states prohibit this.

So what can you do? Some employers hire a firm like Social Intelligence to compile a report on an applicant’s online persona, stripping out all prohibited information before supplying it to the company. This can give you the information you are seeking without exposing you to accusations of bias. If you feel the information is important enough, this may be an option to explore.


Do you have a question for the County Law Librarian? Just email comstocks@saclaw.org.


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