Maybe. There are some things to remember so that lines are not crossed.

Here is the law by state about Social Media Checks: https://www.nolo.com/legal-encyclopedia/state-laws-on-social-media-password-requests-by-employers.html

Here are some discussions on lines you want to be careful NOT to cross: https://www.nolo.com/legal-encyclopedia/can-potential-employers-check-your-facebook-page.html

https://www.backgroundchecks.com/learningcenter/socialmediabackgroundcheck

Here is a nice checklist from SHRM:

7 Ways to Maximize Benefit and Minimize RiskEmployers are well-advised to follow this guidance when using social media in the hiring process:

Never ask for passwords. In several states, employers cannot ask an applicant (or employee) for his or her social media password by law. In all 50 states, asking for an applicant’s (or employee’s) password creates a real risk of violating the federal Stored Communications Act. For this reason, employers should look only at content that is public.

Have HR do it. It is best if someone in HR, rather than a line manager, checks candidates’ social media profiles. The HR professional is more likely to know what he or she can and cannot consider.

Look later in the process. Check social media profiles after an applicant has been interviewed, when his or her membership in protected groups is likely already known.

Be consistent. Don’t look at only one applicant’s social media profiles.

Document decisions. Print out the page containing social media content on which you base any hiring decision and record any reason for rejection, such as bad judgment. This protects you if damaging content has been deleted by the time a decision is challenged.

Consider the source. Focus on the candidate’s own posts or tweets, not on what others have said about him or her. You may want to give the candidate a chance to respond to findings of worrisome social media content. There are impostor social media accounts out there.

Be aware that other laws may apply. For example, if you use a third party to do social media screening, you are probably subject to the federal Fair Credit Reporting Act (and similar state laws). Also, some state laws prohibit adverse action based on off-duty conduct, except under narrow circumstances.

Also, search our FAQs for this title:
Do you have any court cases about checking Social Media on employees or potential employees?

This should be enough information to help you make a good decision for your organization. But, if you have any other questions, please let me know!

October 2018

Social media checks

social media court cases

is it illegal to check social media

are social media checks legal

Are social media checks illegal?