Employers Should Be Cautious Before Searching Social Media Sites For Information About Prospective Employees

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The ability to obtain information about a prospective employee on social media is hard to resist. With the explosion of social media sites and other information on the Internet, employers have a vast array of information about applicants available at their fingertips. Employers, however, must proceed with caution when researching applicants on social media sites or the Internet. For starters, some states, like Illinois, prohibit an employer from requiring applicants to provide access to their social media accounts. Even if an employer could lawfully access an applicant’s social media site, there are a number of good reasons not to do so. Social media sites often, if not always, contain information about the applicant that an employer is prohibited from seeking before making an offer of employment (e.g., the disability or citizenship status of the applicant). Additionally, an employer may obtain other information about the applicant that it is prohibited from using when making a hiring decision, such as the applicant’s age, religious beliefs, sexual orientation, marital status, arrests that did not result in convictions, and political beliefs (a particular concern for public employers). When an employer obtains this information and does not hire the applicant, it will be difficult for the employer to show that the information was not considered when it made the hiring decision. Accordingly, employers should seriously consider whether the advantages of searching an applicant’s social media site outweigh the risks.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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