Excerpted from a McCarter & English LLP Blog by Matthew A. Windman
Employers can learn a great deal about job applicants and employees from social media, but what they can and should do with that information is far less clear. Should employers proactively review publicly available social media accounts before making a hiring decision? Could doing so identify potential issues before an offer is made or publicly announced? Or does routinely searching applicants’ personal online activity create more legal and practical risks than benefits?
A recent incident involving the long-running Broadway musical Hadestown illustrates the issue. On July 29, the producers of Hadestown announced that actor Geno Segers would join the musical’s new principal cast beginning September 1. Days later, clips from videos on Segers’s YouTube page resurfaced online, including comments concerning transgender rights and pronoun usage, prompting widespread criticism from theater fans. The producers subsequently announced that they and Segers had “mutually agreed” that he would no longer join the production.
The episode illustrates both the potential value and the risks of pre-hire social media screening. A review may identify public statements or conduct that could create workplace, client, or reputational concerns before a hiring decision becomes public. But there is no one-size-fits-all approach. Whether screening makes sense depends on the employer, its industry, and the position involved.
Key Takeaways
- There is no one-size-fits-all approach to social media screening. Employers should consider their industry, the nature of the position, the position’s expected public visibility, and the legitimate business interests at stake before deciding whether to conduct a review.
- Social media screening may help identify publicly available conduct that has a meaningful connection to a position or could create workplace, client, or reputational concerns, particularly for public-facing, senior, spokesperson, or other highly visible roles.
- Screening also carries risks. Employers may learn protected or irrelevant personal information, encounter misleading or out-of-context material, or create discrimination and consistency concerns if searches are conducted without a defined process.
- Employers that conduct social media screening should generally develop a consistent approach addressing when reviews will occur, what information is relevant, who will conduct them, and how identified information will be evaluated.
- Even when an employer lawfully obtains social media information, federal, state, and local laws may limit whether the employer can act on what it finds.
As a general matter, and subject to applicable federal, state, and local law, employers may review information that applicants and employees make publicly available on social media and, in many circumstances, may consider that information in making employment decisions.
In New York, Labor Law § 201-i generally restricts employers from requiring access to employees’ and applicants’ personal accounts but provides that the statute does not prohibit or restrict employers from viewing, accessing, or using information that is publicly available or can be obtained without requiring access credentials. New Jersey law, N.J.S.A. 34:6B-5 et seq., similarly prohibits employers from requiring or requesting access to a current or prospective employee’s personal social networking account but provides that the law does not prevent employers from viewing, accessing, or using information available in the public domain. Other jurisdictions may impose different or additional restrictions.
The fact that an employer can review public social media, however, does not necessarily mean that it should do so for every applicant or every position. Each employer should consider what it expects to gain from the search and whether that information has a meaningful relationship to the position.
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