Social Media Background Screening

Social media background screening is the practice of reviewing a candidate’s publicly accessible social media profiles : LinkedIn, Facebook, Twitter/X, Instagram, TikTok, and others : as part of the pre-employment screening process. It aims to identify conduct inconsistent with organizational values, verify information from the application, or gain additional insight into the candidate’s professional behavior and character.

Key legal risks: viewing protected characteristics (race, religion, age, disability, national origin, pregnancy, sexual orientation) that appear on social profiles creates discrimination risk : if the candidate is not hired, they may allege the decision was influenced by protected characteristics observed on social media; inconsistent screening (reviewing some candidates’ social media but not others) creates disparate treatment risk; using social media activity to identify union activity or protected concerted activity violates the NLRA; and several states prohibit requiring password disclosure to personal accounts.

Safe implementation: establish a consistent policy (all candidates for specified roles are screened at the same stage, not selectively); use a designated reviewer who is not the hiring decision-maker (so the decision-maker is shielded from observed protected characteristics); document the specific job-relevant criteria being evaluated; record only job-relevant findings; do not pass protected characteristic information to hiring managers; provide candidates notice that social media screening will occur; and obtain legal review of the process for compliance with applicable state laws.

Job-relevant social media findings: public posts demonstrating discriminatory or harassing behavior (relevant to conduct requirements), public misrepresentation of credentials that were claimed in the application, public disclosure of confidential information from a prior employer (relevant to trust and confidentiality), content directly contradicting statements made in the application or interview process, or explicit conduct violations (criminal activity publicly posted). Most social media content : personal opinions, lifestyle, hobbies, relationships : is not job-relevant and should not factor into hiring decisions.

The EEOC has not issued formal regulations specific to social media screening but applies existing anti-discrimination framework: using information about protected characteristics (intentionally or inadvertently) from social media to make hiring decisions violates Title VII, ADEA, ADA, and other anti-discrimination laws. The EEOC has noted that social media screening creates disparate treatment risk when it provides protected characteristic information that then influences decisions. Employers bear the burden of proving employment decisions were not based on that information.

Third-party social media screening services (Social Intelligence Corp, HireRight’s social screening) claim to provide compliance advantages: a trained reviewer searches social media and reports only job-relevant findings to the employer : the employer never sees protected characteristics. This creates a buffer. However: these services still carry risk if their filtering criteria are subjectively applied, and the FCRA may apply to third-party social screening services (requiring adverse action notices). HR should evaluate whether the marginal insight from social screening justifies the legal complexity it creates.