To Search or Not to Search: Employer Use of Social Media to Screen Applicants and Employees

Tina Harkness, Membership DevelopmentSocial Media.jpg

Many questions are being raised about whether it is advisable for employers to use social media sources to obtain information about job applicants and employees.  The wealth of information that can be found through these sources makes such searches seem logical and even a bit tempting, but whether the information obtained is accessible, reliable, and relevant to the applicant or employee’s qualifications for employment or continued employment is another matter entirely. 

Prevailing public opinion seems to be that social media information is private and should not be accessed or used by employers in making employment decisions.  This trend is currently playing itself out in state legislatures where many states have passed laws limiting or prohibiting employer access to social media sites of applicants and employees.  As an employment law attorney who answers questions daily from employers about their employment relationships, I advise caution here. 

One article that I read recently pointed to a study suggesting that an applicant or employee’s social media postings on sites like Facebook can be used to gauge how dependable and emotionally stable the applicant or employee is.  I am not remotely qualified to comment on the veracity of the study.  But as someone who tries to keep employers out of legal hot water, it would concern me if HR professionals started viewing social media posts for this purpose. 

I am concerned about how legally defensible an HR person’s assessment of an applicant or employee’s dependability and emotional stability from social media posts would be.  This would be a subjective assessment that if challenged, will surely call into question the HR person’s qualifications to make such an assessment.  I recommend that employers wishing to learn more about their applicants and employees’ personalities use tests and assessments that are validated and shown to be reliable instead. 

I would also be concerned about the potential for claims under the Americans with Disabilities Act.  Could an HR professional seeking to assess an applicant or employee’s emotional stability from social media posts be viewed as an impermissible medical inquiry?  Or could the conclusions drawn from the assessment result in allegations that the HR professional regarded the applicant or employee as being disabled? 

This is a developing area, and it may take a while before we can distill out what should be the recommended HR best practices.  My advice: stay tuned and tread lightly.