By:  Judge Ruth B. Kraft, Esq.

Many employers are now using social media, including Facebook, during the hiring process for additional information on potential candidates. surveyed employers and found that 37% of employers who responded already use social networking sites to research job candidates.  Two-thirds check to see if candidates present themselves professionally and more than half look online to determine whether the applicant fits the corporate culture. However, although federal law has yet to address the question of whether you can ask an applicant for his social media password, three states have already done so while permitting employers to check information that is already accessible in the public domain.  Facebook has made the solicitation of another person’s Facebook password a violation of its terms and conditions of use.

However, potential problems can arise from use of materials that you find online.  Say you discover on-line that an applicant has a particular disability, sexual orientation or national origin—something that wasn’t obvious in the interview and all of which are protected classes under the law--or you decide not to hire something because of their participation in a legal off-duty activity, such as being a nudist or a card carrying member of the NRA or a cigarette smoker, you may expose yourself to a potential discrimination claim if you do not hire the individual.  Nevertheless, the internet is a valuable resource for discovering both positive and negative information about candidates.  To use this resource with the least possible exposure, here are some rules to follow:

  • Tell applicants that you will investigate them on publicly accessible Internet and social media sites, such as Linked In, and obtain their permission to do so.
  • Look only at publicly posted information.  Do not ask for passwords or surreptitiously try to “friend” a candidate.
  • If you retain an outside company to conduct the research, make sure that it is in compliance with the Fair Credit Reporting Act (FCRA) notice, consent and disclosure obligations. FCRA applies whenever you use an outside agency to perform credit or background checks, such as criminal, reference or driving record searches.  (Our firm complies with FCRA and conducts background checks – so feel free to contact us directly for assistance.)
  • If you discover information about an applicant’s protected class or legal activities, do not use this information in your decision-making.  The only information found on social media that you may consider should be related to the job or business.
  • Document the search and include the information in the candidate’s file.

For additional information on this topic, assistance with employee forms and policies, or for general employment concerns, contact, Jennifer Kirschenbaum at or at (516) 747-6700 x. 302.