In today’s hiring landscape, it’s almost second nature for employers to type an applicant’s name into Google or check out their social media. If the information is public, it must be fair game, right?
Not exactly. While you can look, doing so without a structured process can expose your organization to significant legal and compliance risks.
Public Information Is Accessible But Comes With Hidden Liability
Employers may view publicly available online content without obtaining specific authorization. However, a simple search can unintentionally reveal protected characteristics such as age, race, religion, disability status, or pregnancy. Once discovered, this information could fuel discrimination claims if the applicant later challenges a hiring decision. The principle is simple: what’s seen can’t be unseen, and that creates risk.
Private Accounts Are Off-Limits
No employer should ever:
- Request social media passwords
- Ask applicants to access private accounts
- Send “friend” requests to gain entry
- Ask for screenshots of private content
In California, these actions are illegal under Labor Code § 980. Many other states have enacted similar protections.
FCRA Applies If Using An Outside Service
If an employer hires any third-party service to review an applicant’s online presence, the process becomes a consumer report under the Fair Credit Reporting Act (FCRA).That means employers must:
- Provide a standalone written disclosure
- Obtain written authorization
- Follow pre-adverse and adverse action procedures before rejecting based on the report
Ignoring FCRA obligations is one of the most common and expensive hiring pitfalls.
Best Practices To Reduce Risk
To protect your organization and ensure a fair, compliant hiring process:
- Create a structured, consistent process for any online screening.
- Use a “firewall” between the person viewing online content and the final decision-maker.
- Limit reviews to public, job-related information only.
- Document your screening approach and maintain it across roles.
- Apply the same process to all candidates to avoid disparate treatment.
Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.