It is rare these days to find an applicant or employee that does not have a personal social media account such as a Facebook, LinkedIn, Instagram, or Twitter. And while not all states have specific “social media” laws (e.g., Arizona), federal law, and in many cases state law (e.g., California and Arizona), prohibits an employer from discriminating against applicants and employees based on protected classifications. Employers should also be mindful of limitations on applicant background checks under the Fair Credit and Reporting Act (FCRA), including taking adverse action based on information discovered in a social media search.

Typically, and specifically under California law, social media is broadly defined as social media services and accounts and includes videos, photos, blogs, podcasts, text messages, email and website profiles and locations. Employers wishing to review these types of sites as part of the background check process should understand that reviewing an individual’s social media site is not without risk.

In-house Investigations

Employers are allowed in most circumstances to conduct in-house investigations in connection with the hiring process. Checking a public social media site as part of this type of investigation does not violate employment or privacy laws. However, employers may not use, even public information, in a discriminatory or otherwise illegal manner. In addition, employers should be mindful that there is a difference between viewing an applicant’s public social media site as opposed to using nefarious means to gain access to an applicant’s private social media site (e.g., creating a fake account and asking to “friend” or “link” with the applicant or asking another individual associated with the employer to “friend” or “link” with the applicant). In other words, employers should never use inappropriate means to gather private information from a social media website.

Searching an applicant’s social media site(s) will likely disclose an applicant’s protected characteristics (e.g., age, national origin, race, religion, sexual orientation etc.). These types of disclosures could easily lead to allegations of discriminatory hiring practices based on protected classifications. To lessen this risk, employers should consider using third-party consumer reporting agencies (CRA) to conduct social media searches. Although the employer remains responsible for information it receives from a CRA, a qualified CRA understands what information is obtainable and how the information may be used. Nonetheless, some employers may find that the benefits (e.g., discovery that the applicant engages in or condones violent behavior, sexually explicit activity, or harbors a discriminatory animus toward protected classifications) outweigh the risks associated with social media searches. As a result, employers who review applicant social media sites must use caution regarding what information is obtained and how the information is used.

In addition, California social media laws prohibit an employer from requiring an applicant or employee to:

• Disclose a username or password for the purpose of accessing personal social media;
• Access personal social media in the presence of the employer; or
• Divulge any personal social media except under limited circumstances.[i]

Employers should consult with legal counsel before taking an adverse action against an applicant or employee based on information discovered during a review of the individual’s social media site.

Employers should also consult with legal counsel before taking an adverse action against an applicant or employee based on information discovered during a review of the individual’s social media site.

Keep in mind also that employers taking an adverse action based on information discovered during a review of the individual’s social media site—either as part of an in-house investigation or through a CRA—must comply with Fair Credit Reporting Act notice requirements.

Members with questions about the use of social media during the background check process should contact Western Growers.