Is it legal to screen candidates’ social media profiles during hiring?

Social media profiles can be a tempting source of insight into candidates during the hiring process. However, this approach comes with a few thorny risks.

Non-compliant social media screening can result in large fines, discrimination complaints, and lawsuits, so you must proceed with caution if you choose to use it. 

To help you decide whether to use social media screening in your hiring processes, we look at the relevant federal and state laws, including anti-discrimination laws, that may apply to your organization.

We also consider whether social media screening is effective and what better alternatives are out there for assessing applicants. 

What is social media screening?

Social media screening is when an employer gathers information on job applicants by researching their profiles and online activity on social media platforms like Facebook, Instagram, X (formerly Twitter), and YouTube. This could include text and images they publish, comments they leave, and posts they Like or interact with. 

Employers typically use social media screening to double-check the information in an application or on a resume and to identify any “red flags”: behavior or attitudes that may go against the organization’s  workplace culture or impact its reputation. 

There are two main ways employers conduct social media screening. Some simply look at publicly available information, while others ask candidates for their login credentials to access their social media profiles.

Is it legal to screen candidates’ social media profiles?

Generally speaking, no federal or state laws prevent you from looking at publicly available information on candidates’ social media profiles. 

However, an increasing number of states are introducing laws that, at a minimum, ban you from asking candidates to provide usernames and passwords for their social media accounts. These states include: 

• Arkansas

• California

• Colorado

• Connecticut

• Delaware

• Hawaii

• Illinois

• Louisiana

• Maine

• Maryland

• Michigan

• Montana

• Nebraska

• Nevada

• New Hampshire

• New Jersey

• New Mexico

• New York (from March 12, 2024)

• Oklahoma

• Oregon

• Rhode Island

• Tennessee

• Utah

• Vermont

• Virginia

• Washington

• West Virginia

• Wisconsin

In many states, these laws go beyond prohibiting you from asking for usernames and passwords. For example, they also ban you from:

• Asking candidates to access their social media in your presence

• Telling candidates to add someone as a contact on social media

• Requesting candidates to make their profiles public

• Asking candidates to share content from their personal social media profiles

Furthermore, while there are currently no state laws prohibiting you from searching candidates’ publicly available information, what you do with that information can open you up to legal risk, especially allegations of discrimination.

There are various laws prohibiting employers from discriminating against candidates and employees, including:

• Title VII of the federal Civil Rights Act, which prohibits discrimination based on race, national origin, color, religion, and sex

• Other federal laws that ban employers from discriminating based on age, citizenship status, and genetic information

• The federal National Labor Relations Act which prohibits discrimination based on union activity

• State laws that prohibit discrimination based on protected groups (race, religion, national origin, age, sex, pregnancy, familial status, disability, veteran status, and genetic information)

• State off-duty conduct laws that ban employers from discriminating against a candidate based on their lawful conduct outside work hours, for example, drinking alcohol

When you conduct social media screening, you may discover information about candidates you otherwise wouldn’t have known. If this information intentionally or unintentionally informs the hiring process - for example, a decision not to interview a specific candidate - you may face discrimination complaints or legal action.

Some employers choose to use a third-party social media screening check service. If you do this, you must ensure the service and your organization comply with the obligations under the Fair Credit Reporting Act. 

Before engaging in social media screening of any kind, speak to a lawyer for advice on your obligations under federal and state laws to ensure compliance.

Is screening social media profiles effective?

Social media recruiting can be a valuable tool for talent acquisition. However, relying on social media screening during hiring may be more trouble than it’s worth. 

While a candidate’s online presence may give you some insights into behaviors or attitudes that could impact company culture, there are also risks aside from the legal ones outlined above. 

Firstly, candidates may be put off by potential employers accessing their social media profiles, and you could lose out on top talent. Plus, social media profiles are not always a  reliable source of information. They may misrepresent a candidate by presenting outdated or out-of-context information. 

Ultimately, social media screening may not add value to your recruitment process. A 2020 study found that assessments of social media profiles failed to accurately predict job performance, and “hiring officials stand to gain little from probing applicants' online activity.”

Evidence-based pre-employment testing is a more reliable, unbiased way to assess a candidate’s cultural fit for your organization.

Unlike social media screening, pre-employment testing offers a structured, scientifically validated way to evaluate candidates tailored to the specific requirements of a job. This approach is far more accurate when measuring candidates’ skills, personalities, and compatibility with your organizational culture. 

Pre-employment testing: a more reliable, compliant way to screen candidates

While employers generally have access to publicly available information about candidates online, navigating federal and state laws is crucial when screening social media profiles. To ensure compliance, speak to a lawyer about the regulations that apply to your organization and what you can and can’t do. 

Before delving into candidates’ social media profiles, consider using other methods for gaining additional insights during the hiring process. Pre-employment testing is a great option, reducing the risk of unconscious bias associated with relying on candidates’ online presence. 

TestGorilla is a top-rated pre-employment testing platform that supports a skills-based approach to hiring. With over 400 tests, including a range of personality and culture fit tests. Our assessments deliver science-backed, data-driven insights into candidates to help you make informed hiring decisions. 

To learn more about how TestGorilla can enhance your hiring processes, book a live demo or sign up for a free plan today!

Disclaimer

The information in this article is a general summary for informational purposes and is not intended to be legal advice. Laws are subject to constant change, and their application varies based on your individual circumstances. You should always seek legal advice from a qualified attorney about your legal obligations as an employer. While this summary is intended to be informative, we cannot guarantee its accuracy or applicability to your situation.