Scherzer Blog

Googling Job Applicants: Legal? Yes. Risky? Yes.

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.

February 24th, 2026|Compliance Corner, Employment Decisions|

Your Next Hire Is Online. Here’s How to Screen Them Legally.

Social media screening is legal, but only if done right. Here are the essentials.

Federal nondiscrimination laws still apply.
Anything that reveals protected characteristics (race, religion, disability, age, pregnancy, etc.) cannot influence a hiring decision.

Using a third‑party screener? That triggers the FCRA.
Employers must provide a standalone disclosure, get written authorization, and follow pre‑adverse and adverse‑action steps. Accuracy rules also apply and the CFPB is enforcing them more aggressively.

28 states restrict employer access to personal social media.
Most ban requesting login credentials, requiring applicants to log in on the spot and demanding they add HR as a “friend.” In some states, even asking for a username may create risk.

Public vs. private content matters.
Employers may review public posts but accessing private content without permission can violate the federal Stored Communications Act.

NLRA protections apply online.
Employees’ posts about wages or working conditions may be protected concerted activity. Don’t treat them as negative findings.

California adds extra compliance layers.
ICRAA and CCRAA impose stricter disclosures when using third‑party screeners.

Best Practices

Use a consistent, documented process focused ONLY on job‑related behaviors (e.g., threats, fraud, harassment). Keep decision makers away from protected information. Never request access credentials. Stick to public content. And follow the FCRA if a third-party is involved.

February 5th, 2026|Compliance Corner, Employment Decisions|

Bankruptcy Records: Credit Reports Erase Them But Employment Background Checks Find Them

Many people assume that once a bankruptcy drops off their credit report, it disappears everywhere.

Not true. And this difference matters, especially for employers and job seekers.

Credit Reports Follow Standard FCRA Time Limits

Under the Fair Credit Reporting Act (FCRA), national consumer reporting agencies (TransUnion, Experian, Equifax) must remove bankruptcies after specific time periods:

Chapter 7: reportable for up to 10 years
Chapter 13: typically removed after 7 years, sometimes sooner
Once these limits are reached, credit bureaus delete the record entirely, meaning they cannot provide it for any purpose, including employment screening.

Employment Background Checks Work Differently

Employment screening companies are also consumer reporting agencies under the FCRA, but they don’t rely solely on credit bureaus. They frequently pull records directly from the courthouse, which may contain older bankruptcy filings long after the credit bureaus deleted them.

Under the FCRA’s $75,000 salary exception, employment background check companies may report adverse information with no time limit. So if a bankruptcy exists in public court records, it may still appear on an employment background check even though it no longer appears on a credit report.

State Reporting Laws Add Another Layer

Several states have their own rules on how long bankruptcy records may be reported in employment background checks–specifically California, Colorado, Kansas, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, New York, Texas, and Washington. California, for example, prohibits reporting a bankruptcy that is more than 10 years old measured from the date of the relief order, unless a narrow exception applies.

Bottom Line

A bankruptcy “dropping off” your credit report does not guarantee it disappears from employment background checks. Different rules, different timelines.

January 29th, 2026|Compliance Corner, Employment Decisions|

Can Employers Charge Job Applicants for Their Background Check?

When candidates apply for a job, they expect a thorough screening process: interviews, reference checks, and often a formal background check. But can an employer require a job applicant to pay for their own background check?

The answer is more nuanced than a simple yes or no. It depends on state law, federal wage-and-hour rules, and how the background check is conducted.

Federal Law: No Direct Prohibition, but Important Limits

At the federal level, there is no law that explicitly prohibits an employer from requiring applicants to pay for a background check. The Fair Credit Reporting Act (FCRA) regulates how background checks must be conducted but it does not regulate who must pay for the screening.

However, the federal Fair Labor Standards Act (FLSA) does impose limitations once a person becomes an employee. Employers cannot deduct background check costs if doing so would reduce the individual’s pay below the minimum wage for that workweek. While this usually applies to employees, not applicants, it still influences how some states treat pre‑employment expenses.

State Laws: The Deciding Factor

State legislation determines whether an employer can charge job seekers for the cost of a background check. And many states say no. These include: California, Louisiana, Minnesota and Vermont.

In states without specific prohibitions, employers may legally require applicants to pay for background checks as long as the practice does not violate any other wage, consumer protection, or hiring transparency rules.

Should Employers Charge Applicants?

Even in states where charging applicants is legal, many employers avoid it for several reasons:

Competitive Disadvantage

Requiring applicants to pay, especially lower‑wage candidates, may shrink an employer’s talent pool.

Perception and Candidate Experience

Applicants may view the request as unfair or predatory, damaging employer reputation.

Administrative Burden

Collecting fees, issuing reimbursements, and maintaining compliance increases operational complexity.

Equity Concerns

Cost‑shifting disproportionately impacts economically vulnerable job seekers.

For these reasons, most employers see background check costs as part of doing business.

January 15th, 2026|Compliance Corner, Employment Decisions|

New Year, New Rules: Recap of What’s Coming in 2026 in Employment Screening

2026 marks a series of newly enacted laws taking effect across the country. Employers must adapt quickly to ensure compliance and maintain fair hiring practices. Below are the most significant changes taking effect this year.

District of Columbia: Second Chance Law (Effective January 1, 2026)

Automatic sealing of decriminalized offenses (such as pre-2015 marijuana convictions) and various older convictions.
Petition avenues for sealing additional convictions.
Employers are not permitted to access or act on any records sealed under this new law.

Philadelphia: Criminal Record Screening Amendment (Effective January 6, 2026)

Look-back periods cut; only felonies within the past 7 years and misdemeanors within the last 4 years are eligible for consideration, while minor offenses (summaries/infractions) are entirely excluded.
Requires “pre-adverse action notices” over a ten-day candidate response period, and robust documentation, even extending the 90-day protection against adverse action following protected activity.

New York State: Credit-Check Ban (Effective April 18, 2026)

Employers, including staffing firms, cannot request or use any “consumer credit history” for hiring, promotion, compensation, or other employment decisions, unless a statutory exemption applies.
This statewide ban aligns with New York City’s Stop Credit Discrimination in Employment Act (SCDEA), extending similar protections across the entire state.
The expansive definition of “credit history” covers credit reports, scores, credit accounts, and payment histories and, similar to the SCDEA, it likely prohibits searches of public records for bankruptcies, judgments, and tax liens unless an exemption applies.

Washington State: Fair Chance Enhancements (Effective July 1, 2026)

Employers with 15+ employees must wait until “after extending a conditional job offer” to inquire about criminal history; this rule extends to all employers by January 1, 2027.
Arrests, juvenile convictions, and non-conviction adult records are off-limits in hiring decisions. Only relevant adult convictions may be considered and only with a documented legitimate business justification, accompanied by a written notice and at least two business days for a candidate’s response.

Virginia: Clean Slate Law (Effective July 1, 2026)

Numerous misdemeanors and low-level felonies will be “automatically sealed” disappearing from standard background checks.
Employers and screening vendors are expressly barred from reporting or considering such sealed convictions in hiring decisions

San Francisco: Updated Fair Chance Poster

The City and County of San Francisco issued a revised version of its Fair Chance Ordinance (FCO) notice poster, replacing the prior version released in 2023. The updates include changes to official contact information and a Vietnamese-language translation, in addition to English, Spanish, Chinese, and Tagalog. The updated poster can be found here.

January 13th, 2026|Compliance Corner, Employment Decisions|