Ask Leslie: Can We Require Job Applicants To Allow Us To Review Their Social Media As Part Of Our Background Check?

By Leslie Zieren, The McCalmon Group, Inc.

Dear Leslie:

 

We have two job applicants we are considering. As part of our interviews, can we require them to reveal their Facebook, Twitter, Instagram, or other social media accounts to us?

 

Signed: Deb

 

Dear Deb:

Although there is no federal law prohibiting you from requiring a job applicant to disclose the username and password for social media accounts or otherwise give you access, about half of the states prohibit this practice. It would be wise to consult with your local counsel for the latest legislation in your jurisdiction.

You may track the developments in the states by visiting the National Conference of State Legislature's website.

As an employer, of course you want to make the best hire possible - someone qualified and who will reflect on your organization in the most positive light. It is important to find out as much as you can about an applicant. You may, as any member of the public, view any public social media posts without violating any privacy laws. Such a review can reveal helpful information on maturity, judgment, career objectives, and even current employment status.

There is a caveat, however, as to viewing posts, including public posts. Public posts can reveal age, race, disability, religion, national origin, or other protected class characteristics. Use of these characteristics to make the hiring decision creates discrimination risk under both state and federal laws. 

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

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