Technology

How Employers Can (and Cannot) Use Social Media to Evaluate Employees

At a time when new social media platforms and practices have dramatically changed how we communicate, relate to each other, and share information, understanding the professional implications of social media activity has become increasingly important.


Social media has rapidly evolved from an almost exclusively social medium into a tool for professional engagement and exposure. Today, on the one hand, individuals are using social media platforms both as a way to engage with fellow professionals and as a digital résumé. On the other hand, companies are recognizing that social media is not only a potent marketing and communications asset but also a valuable way to conduct more in-depth employee evaluations and job applicant assessments.
Social media vetting is a relatively new practice, with some potentially thorny legal and ethical implications. Understanding what is and is not permissible when it comes to an employer reviewing and monitoring social media activity is critically important. Successfully navigating the legal complexities surrounding the use of social media information for hiring and firing purposes is essential for employers who want to make use of this valuable information while discovering and/or limiting exposure to potentially costly legal and financial liabilities.

People and Practices

Determining exactly who should have the responsibility of reviewing potential employees’ social media activity is an important first step. A “best practice” is to assign this to a single HR professional to maintain consistency and optimize accountability. To ensure compliance with the Fair Credit Reporting Act, it is important to not outsource this task. As for who should be reviewed, there is only one overarching guideline to follow: everyone or no one. Inconsistent application of social media reviews can create the appearance of impropriety or discrimination. A written social media review policy and practice that is backed up by detailed documentation is important to have in place—particularly if an existing or prospective employee were to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), for example.

Questions and Content

When asking applicants about their social media activity, your goal should be to keep the questions general and to stay away from forbidden or sensitive topics. For example, asking if an applicant uses Twitter or Facebook or requesting information about what social media platforms he or she uses most often is fine. Asking for passwords, however, is not only a bad idea but also illegal in that it is a violation of the Federal Stored Communications Act. It is important to use common sense when it comes to the review itself, looking for red flags, such as signs of unsafe or illegal activity or potentially damaging, inflammatory, or offensive language about different groups, institutions, or companies. Companies may also identify certain behaviors or language that might be unremarkable in a general context but would be problematic for an employee (whether it violates company policy or conflicts with moral or ethical standards).

Platforms and Permissions

Generally speaking, any social media accounts that are in the public domain can be reviewed by an employer. Popular and heavily trafficked sites like Facebook, Twitter, and Instagram should get top priority. Keep in mind that access rules differ for prospective and existing employees. According to the Electronic Communications Privacy Act, employees have no legal expectation of privacy with respect to any activity they engage in on company-owned machines. Employer review options are more limited when it comes to personal devices: Here again, the public domain standard applies.
Randal Cole is a member of Dawda, Mann, Mulcahy & Sadler, PLC, where he concentrates his legal practice in the area of labor and employment law for automotive, automotive dealership banking and financial services, construction, manufacturing, and healthcare industries. Contact Randal at rcole@dmms.com.
Tomorrow we’ll hear more from Cole concerning timing, technique, reviews, and restraint.