Can an Employer Examine a Job Applicants’ Social Media Accounts?

In recent years, New Hampshire has joined an increasing number of states to pass legislation regarding the use of social media information when hiring potential employees.  While social media can be a helpful tool in an employer’s recruiting tool belt, it is also important that employers tread carefully and follow an established social media policy to help avoid unintended consequences, such as claims of discrimination by applicants.

As of September 30, 2014, RSA 275:74, Use of Social Media and Electronic Mail, prohibits employers from requiring applicants or employees to disclose information, such as log-ins, to access private social media accounts.  Moreover, the law provides that employers cannot compel an applicant or employee to add anyone to a list of contacts associated with a personal account, or require an applicant or employee to reduce his/her privacy settings so information is viewable.  Therefore, employers must be mindful to avoid crossing the line between merely viewing an applicant’s publicly available social media information, to requesting to see privately held information, such as through a friend request on Facebook© or connecting on LinkedIn©.

While using social media in the hiring process has benefits and is often seen as an extended part of a background check, it also has risks.  For example, when viewing social media, an employer may learn information about an applicant that implicates a protected class.  In New Hampshire, such protected classes include age, sex, race, color, marital status, physical or mental disability, religious creed, national origin or sexual orientation.  Because this information is likely to be discovered on social media through photos and posts, it is advisable that the person making the hiring decision is not the same person who reviews an applicant’s social media information.  This helps ensure that information regarding an applicant’s protected status is not considered by the hiring decision maker.

In addition to uncovering an applicant’s status in a protected class, there are other risks associated with incorporating social media searches into hiring decisions.  Employers that use a third party to review social media, for example as part of a background check, may also be subject to the federal Fair Credit Reporting Act.  Private employers must also remember that the National Labor Relations Act and various state laws may prohibit them from disciplining employees for off-duty conduct, including social media use and free speech issues, which is beyond the scope of this post.

If an employer chooses to use social media during the hiring process, it is important to search social media consistently among applicants and during the same phase in the hiring process, preferably after an in-person interview has taken place and an applicant’s protected status is probably already known.  Since posts on social media can be removed or changed within a matter of seconds, it is also important that any content viewed by the employer is saved so that it can be referenced in the future if needed, such as to show that social media information reflected an applicant’s unfitness for the job, rather than a protected class.

As technology and the law in this area is constantly evolving, employers would be well advised to create, maintain and follow social media policies in the workplace.  Such policies should include, at a minimum, information about which social media sites will be searched, specify when in the hiring process a social media search will be conducted, require that the accuracy of information discovered on social media that is used to make a hiring decision be verified through other sources, and disclose the potential use of social media searches on job applications and advertisements.

 

About the Author: Lindsay E. Nadeau

 

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