Critical Points to Consider Before Checking Applicants’ Social Media

You’ve interviewed several qualified candidates for a position and are having a difficult time deciding which of them should receive an offer. You wish you knew more about them. Checking their social media profiles seems to make sense, and you may have read that many employers screen social media profiles, either manually or using AI-driven social media screening tools.

Before diving in, make sure you are aware of the rules and some serious pitfalls to avoid.

1. Do not ask an applicant for access to their social media. California law prohibits employers from requesting or requiring an applicant to divulge their personal social media usernames or passwords, to access their personal social media in the employer’s presence, or to divulge personal social media. (The same restrictions apply to current employees, subject to limited exceptions.)
2. Consider Potential Discrimination Issues: Employers cannot ask an applicant about their age, race, disability, or other protected classification, and employers may not consider this information when making employment decisions. But you might come across this information during a social media search, which may taint later employment decisions, including the decision to hire. Employers should also be aware that under California regulations, they are liable for discrimination caused by automated decision-making systems, such as AI tools.
3. Take steps to avoid obtaining criminal history information: California law prohibits almost all employers with five or more employees from inquiring into applicants’ criminal histories before making a conditional offer of employment. The law also prohibits employers from considering certain types of crimes when making employment decisions. Employers should ensure that social media searches (manual or automated) do not violate these state laws, or any local Fair Chance ordinances (e.g., San Francisco, Los Angeles City and County, San Diego County).
4. Also, take steps to avoid obtaining salary history: California law prohibits employers from requesting or seeking salary history information (including compensation and benefits) from an applicant.
5. Be aware of potential coverage by federal and state background check laws. The federal Fair Credit Reporting Act (FCRA) and California’s consumer protection laws, the Investigative Consumer Reporting Agencies Act (ICRAA) and Consumer Reporting Agencies Act (CRAA), are a complex set of laws covering employers who obtain consumer reports from a third-party consumer reporting agency, or employers whose in-house searches involve criminal, tax lien, or civil judicial or judgement records. These laws require employers to provide multiple detailed notices to the person who is the subject of the report, and employers who fail to comply may face stiff penalties and fines.

The Consumer Financial Protection Bureau (CFPB) recently issued guidance suggesting a broad application of the FCRA to cover third-party assessment tools used for hiring when the third party combines job applicant information with information from sources other than the employer. Additionally, a company providing an AI screening tool to evaluate candidates, in part by gathering the applicant’s social media, is the subject of a nationwide class action lawsuit in California, alleging violations of the FCRA and California’s ICRAA.

Employers considering social media searches should consider the potential applicability of these background check laws. Those considering the use of third-party AI screening tools in hiring should make sure they understand what information the tool is collecting, and may need to consult counsel about the applicability of background check laws.

The decision to search applicants' social media should involve consideration of all of the above issues and development of uniform policies and practices to make sure social media searches are handled properly and by the right people in your organization. Some employers might conclude it is best to avoid viewing candidates’ social media accounts altogether.

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