Question: As a small employer, I do not perform pre-hire background checks, but I have been google-searching candidates and looking at their Facebook profiles before making hiring decisions. I am shocked by the amount of information available on the internet. Are these types of screenings risky?
Answer: Yes. To illustrate why employers should be wary of performing these types of pre-employment searches, consider the appropriateness of asking the following questions during a job interview: “Are you pregnant?” “With what gender do you identify?” “Do you have a criminal record?” “Have you had any recent medical issues?” While most employers quickly recognize that asking an applicant such questions is unlawful, few recognize that performing a pre-employment social media search may elicit the same type of information.
According to a 2017 national survey conducted by the job search website CareerBuilder, approximately 70% of employers use social media to screen candidates before hiring, up from 60% in 2016. According to the survey, while 60% of employers who use social media screening are looking for information that supports the candidate’s qualifications for the job, 50% are looking to determine whether the candidate has a professional online persona, and 24% are looking for a reason not to hire a candidate. Although the statistics imply that a majority of employers are using pre-hire social media searches for reasons that appear to make sense, such searches can present significant risks from a legal standpoint.
A social media search often reveals information about the candidate’s protected characteristics that employers are not permitted to consider in making hiring decisions, and about which the employer would have no knowledge if the search had not been conducted. If the employer does not hire the candidate, the candidate can argue that it was because of the protected characteristics that the search revealed, and the employer is placed in the difficult position of proving that its decision was based on a legitimate, non-discriminatory reason.
To protect itself from a claim of discrimination, an employer should limit requests for information during the pre-employment process to details essential to determining a person’s qualifications to do the job, with or without reasonable accommodations. California law specifically prohibits employers from requesting or considering information about an applicant or employee that would disclose the individual’s membership in a protected classification (i.e. national origin, religion, age, sexual orientation), except in very limited circumstances where the characteristic is related to a bona fide occupational qualification. The Department of Fair Employment and Housing (DFEH) publishes guidance on what employers can and cannot ask applicants and employees, which is available at https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH_PEI-Guidelines.pdf. In terms of a social media search, this means that employers should limit themselves to looking on professional networking websites like LinkedIn or BranchOut, and avoid sites like Facebook, as well as general Google searches.