Is It Legal to Check Social Media Profiles When Hiring?

The Growing your Team Podcast: Episode 150

Have you ever been tempted to check social media profiles when hiring? Is it even legal to do so?

In this podcast episode, you’ll learn why business owners are tempted to check social media profiles when hiring, why doing so puts you at risk, if it’s ethical to take this action, and how you can best protect yourself if you decide that checking social media profiles is the right decision for your business. 

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Episode Transcription:

This podcast episode transcription might be edited for clarity and conciseness.

Hello, Jamie Can Cuyk here, and welcome back to the Growing Your Team podcast.

Today, I want to talk about something that I had a conversation with the clients recently. It’s something I’ve talked to a few clients about in the past, so I feel like this is a very important topic. This is something that I feel a lot of people are taking a huge risk on throughout the hiring process, and you need to decide if the risk is really worth the reward.

What am I talking about? I am talking about looking at candidates’ social media profiles when deciding if they are someone you want to interview and want to hire.

Today, we’re going to talk about why this is risky, why it might or might not be in your favor to do it, and how you can do it effectively if it’s something that you want to do.

00:03:42 – Are all social media profiles the same?

Let’s start off by jumping right in by talking about why it is risky to look at people’s social media profiles. But real quick, I want to set some clarification. When we talk about social media profiles when it comes to hiring, we’re talking about all social media profiles, Facebook, Instagram, TikTok, and whatever ones I am currently blinking on right now because I feel like there are new ones coming up every day. While LinkedIn is included in there for a social media profile, most people use LinkedIn for business purposes. So, LinkedIn, we’re not really going to classify as part of this conversation. I feel that looking at LinkedIn is completely different than looking at different social media accounts because, as I said, most people are using LinkedIn for business purposes. They’re listing their job information, their employment history right there. Most people’s posts have to do with business, so that platform is a completely different conversation.

You can keep looking at LinkedIn if that is what you are doing. We’re talking about the other social media profiles, the ones people are really using for their personal enjoyment.

00:05:09 – Why is it risky to look at social media profiles?

All right, so now that we got that out of the way, let’s start talking about why it is risky to look at social media profiles. The biggest reason that this is risky is that it puts you at risk for discrimination lawsuits.

And why does it do this? Why are you putting yourself at risk? And this is because of the Civil Rights Act. This act says you cannot discriminate against protected classifications, and the law goes on to say it doesn’t matter how you learn about this information about a candidate, you can’t use it in your hiring decision. You can’t make decisions based on race, color, national origin, religion, gender, disability, sexual orientation, age, and anything like that. Those are protected classes, and when you look at social media, when you look at someone’s profile, all of a sudden, you can be given all this information about a candidate that then you can either consciously or subconsciously make decisions on.

You might not consciously be making a decision on the fact that someone is a woman with children, but you could be starting to think that in the back of your mind, and it’s swaying your decisions. And if a candidate knows that you looked at their profile, or you have a record that you looked at their profile because you took notes on it, they can come back and say, you discriminated against me, even if that’s not why you decided not to hire them or not to give them an interview.

So, looking at people’s social media profiles puts you at risk because you have the ability to uncover information that wasn’t disclosed to you throughout the hiring process, that wasn’t on a resume, and that candidates didn’t tell you about in an interview. We want to make sure that we are being very, very careful when it comes to protected info.

00:07:45 – But what if a candidate tells you protective information?

For example, one of the things I tell my clients all the time when it comes to interviews is we can’t ask questions about personal lives because then we take it personal. And, if, by chance, the candidate brings it up their personal life in the interview, we don’t dig deeper. We don’t even really acknowledge it, and we move on. We move on to the next question because we want to make sure that we don’t take the conversation to any of those protected categories.

If the candidate takes it to those protective categories, we don’t continue the conversation. We can’t control what the candidate says, but we can control what we say.

It’s the same thing with looking at social media. We don’t want to lead the process of acquiring information in the protected categories. When you look at people’s social media profiles and whatever they’re sharing out there, you’re leading the process of discovering protected information. And once you see it, it’s hard to prove that you didn’t make my decision based on that information.

You want to protect yourself, and that is why you want to make sure that you’re not doing anything that could put you at risk for a discrimination lawsuit.

00:09:49 – Why do employees want to look at social media profiles?

Now that we know the risk, but let’s talk about why people do it. A lot of my clients and a lot of other businesses look at it because they want to get a better picture of a candidate. They want to know who they are. They want to make sure that they’re not bringing someone into their business that is knowingly going to cause harm to their business. For example, maybe there’s someone that’s very vocal about something that goes against your company’s core values.

They want to know who this person is, and some people say it’s worth the risk because they’re learning about a candidate.

Well, one of the things you also have to ask yourself there is, are you learning things about a candidate that prove they are a good or poor worker when it comes to what matters for the role? Are you uncovering anything that proves or disproves the candidate’s qualifications? Or, once again, are you judging people on things that don’t matter for the job?

00:11:03 – A client example

Let me give you an example. A client I was working with years ago looked at the candidates’ profiles.

One of the candidates that he was interested in had a picture of him drinking, and so my client said, “Well, this person drinks. I don’t want to hire him.”

And I said, “Are you against drinking?” which I knew wasn’t the case because having a drink at happy hours for the Business Association we were in together. It would be after work hours, and they would be enjoying a drink; they drank responsibly.

They said, “No, I’m not against drinking. I just don’t want to give the wrong impression to my clients, and I don’t want a partyer or someone who’s going to show up drunk to work or hungover.”

And I asked, “What about this picture shows that they drank and went to work or were out partying so late that they showed up hungover to work the next day? There’s nothing. It’s a person enjoying a drink.”

In this case, my client was making assumptions based on one picture, one picture of this person enjoying a drink. I had to show my client that this was not something to hold against the candidate and that this did not show that they could or could not do the job. This is seeing a snapshot in time and making up a story about a candidate versus uncovering information that proves their qualifications.

00:13:20 – It’s just a snapshot

That’s one thing you have to think about with social media. Social media is just sometimes snapshots in time. It doesn’t show us everything about a candidate.

Sometimes you’ll look at candidates, and they have lots and lots and lots of information out there. Other times one little scroll and you’ve already gone back four years because they don’t post much out there.

You have to ask yourself, am I really learning information that is valuable for hiring this person or not?

00:14:26 – Is it ethical to look at social media profiles?

That brings us to the question of whether it’s ethical to look at someone’s social media profile and make a decision when what you’re making a decision on is not job-related. Let’s go back to my client’s candidate that had a picture of him drinking. Should we judge someone because they go out and have a drink or a few drinks and then get a Uber ride home on a Friday night? Should we judge on what people do in their personal lives? It’s not what they do in their professional life.

You have to ask yourself. Do you think it’s ethical to judge someone’s work performance on stuff that has nothing to do with their work performance? In my opinion, no. In my opinion, with most candidates, their personal life and what they do in their personal lives does not impact their work performance.

00:15:43 – Will looking at social media produce higher retention rates and better job performance? 

If you decide that it is ethical, the next question is, do you really think it’s going to get you better candidates? I don’t have the name of the study, but there have been studies that have been done that actually show you don’t get better candidates.

They did a test in this one scenario where they compared the results of retention and performance. They looked at candidates who were judged on their social media, and then they looked at candidates that were not judged on their social media. And when it came to retention and when it came to job performance, there was no difference in the groups.

Looking at people’s social media did not produce better team members.

So, you have to ask yourself, if it doesn’t produce better team members, then why are you putting yourself at risk? Why are you dealing with the potential ethical dilemma? Why are you putting yourself at risk for potential discrimination lawsuits if you’re not taking a step that is going to produce better candidates?

This is why we advise you not to look at social media profiles.

00:17:19 – Best practices for looking at social media

But I know there are people out there saying, “But social media is important to my work. My clients will connect with my team members on social media. They’ll see what’s on their social media. It’s just the nature of my business, so I have to make sure that I’m hiring someone that is going to put the best view out there for my business.”

If this is you, here are a few tips to help make sure you do it safely first.

• Conduct interviews first. Do not try to look someone up on social media before you ever conduct an interview. Wait until you do your first interviews and potentially until after you do the second interviews.
• If you are going to look up one candidate who reaches that stage of the process, look up every candidate that reaches that stage of the process. That way, it’s a consistent step in your process.
• If all you’re doing is looking at social media because you want to verify past work performance, you can do that in certain background checks instead of putting yourself at risk with social media.
• When possible, delegate. You can hire a third party that will help you look at their profiles. They can tell you if they are good or bad without giving you any of the details because they are properly trained to look for the right things on someone’s profile.
• Keep it business. You’re looking for things so you can make a business decision. Make sure that what you’re making that business decision on is business related.
• You want to keep records, so you know exactly why a candidate was not hired. And this includes keeping records on things that you didn’t uncover during social media – like through the interview. So that way, if it comes down to two candidates, there are records of why you made your decision. And, when you force yourself to keep records, it forces you to really think of why you’re saying yes or no to a candidate. Which then helps reduce the potential for bias and reduces the potential for discrimination.

If you must look at social media during the hiring process, follow those steps, so you protect yourself. That is the biggest thing – Protect yourself.

The best way to protect yourself is to remove social media from your process. It is not needed. But if you must do it, take steps to protect yourself. That way, if by chance a candidate decides to sue you, you have all your T’s crossed and your I’s dotted so you can prove why you did not select that candidate, and hopefully, things go away quickly and in your favor. So once again, our advice is to keep social media out of the process, but if you must do it, do it right so you protect yourself.

Related Episodes:

Ep08 – How to Avoid the Risk of Employee Misclassification with April Goodwin

Ep27 – Three Ways To Avoid Discriminating In The Hiring Process

Ep116 – How to End a Bad Interview Early

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