As the use and reach of social media continues to increase and evolve, employers should be aware of the latest risks and issues to consider during the recruiting and hiring process.

The results of an August 2014 online survey conducted by Jobvite show the following:

• Ninety-three percent of recruiters will review a candidate’s social media profile before making a hiring decision.
• Seventy-three percent of recruiters have hired a candidate through social media.
• Fifty-five percent of recruiters have reconsidered a candidate based on their social media profile.

The high percentage of recruiters using social media is not surprising to anyone involved in the hiring process.  But there are legal pitfalls to basing hiring decisions on information obtained through social media.  The risks associated with using social media in the hiring process include: 

• potential discrimination claims
• off-duty conduct laws
• Fair Credit Reporting Act (FCRA) and state law compliance, including password protection laws
• restrictive covenants.

Some employers learn about these risks and may want to opt out of using social media in the recruiting and screening process altogether.  However, not using social media could put employers at a competitive disadvantage.  So it is better to learn about how to minimize these risks.

Here is a list of best practices we suggest when using social media in the hiring process:

• Use several different social media advertisements in conjunction with traditional recruiting efforts.
• Consider hiring a third-party background check provider to conduct social media checks or wall off an internal individual conducting such checks.
• Review third-party or in-house background checks for compliance with FCRA and state laws.
• Confirm that any protected class or lawful off-duty conduct information will be filtered out of background check results.
• Confirm that all information obtained actually belongs to or relates to the prospective employee.
• Avoid connecting with friends of a prospective employee to view information about the candidate.

Ask about a prospective employee’s restrictive covenant agreements with prior employers and require a representation of compliance.