Social Media: Important Employer Considerations
By Paul Scrom, Esq., Partner Halpern & Scrom Law
While social media accounts provide a potential trove of information regarding candidates, doing so raises potential legal issues if employers are not diligent in monitoring their own research conducted on social media platforms.
If employers look at an employee’s social media account, they become aware of traits protected by antidiscrimination laws. These include race, gender, disability status, religion, and more. As such, it is best practice to look at a social media account only after meeting the candidate in person, when employers would have likely become appraised of many of these characteristics. Keep in mind, this is not true if, for example, a candidate does not disclose a disability that is not apparent in the interview, but writes about it on their social media account. Employers are prohibited from using protected characteristics in making any employment decisions.
Because employers may inadvertently come across information related to protected characteristics when looking at a candidate’s social media, it is best practice to utilize a third-party screening service to conduct social media checks. The service relays information that would be helpful to the employer in making its hiring decision, while withholding information related to protected characteristics.
Furthermore, employers should not look at any social media postings that are not on a candidate’s public profile. Looking at private social media posts, or asking for a candidate’s social media login credentials, can raise privacy law concerns. Employers must ensure that their own social media accounts and job postings indicate that they are an “equal opportunity employer,” and their policies and practices should reflect the same.
About the Author
Paul L. Scrom Jr., Esq., is a Partner at Halpern & Scrom Law. He devotes his legal practice to representing organizations in all employment law matters. Paul regularly advises Human Resources executives, in-house counsel, management, and business owners on compliance and preventative measures in issues of employee discipline, terminations, discrimination/harassment, wages and hours, independent contractor classifications, restrictive covenants, and social media. Paul received his Juris Doctorate in 2012 from the Maurice A. Deane School of Law at Hofstra University. During law school, Paul was Articles Editor of the Hofstra Labor and Employment Law Journal. Paul graduated Magna Cum Laude from Binghamton University in 2009 with a B.A. in both Philosophy of Law and History. Paul is admitted to the practice of law in the states of New York, New Jersey and the United States District Court for the Southern and Eastern Districts of New York.
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