Legally Conduct Social Media Background Checks

Guide on legal social media background checks for law firms, with data analytics icon.

You no doubt know about criminal background checks, drug tests, and credit history checks for employment, but have you heard about social media checks? Let’s start by saying that it’s a real thing in today’s hiring process! 

Today’s hiring managers are looking beyond resumes and typical background checks and relying also on social media background checks. These background checks, also known as social media screening pertain to reviewing a candidate’s social profiles during the hiring process. It’s becoming more common for businesses to conduct social screens of professionals during the pre-hiring process. Take a look at the numbers:  

Type of pre-hire screening usedBetween 2018 and 2021, a 2% increase in social media checks during the pre-hiring process was reported. Although it’s difficult to predict how an individual may ultimately perform, the hiring process is still one of a manager’s most important roles. With the acceptance of social background checks increasing, it’s practically a foregone conclusion that more hiring managers will begin to rely on social screenings. 

The following chapters explain the technicalities and legalities behind social media screenings, but here is just a quick look at the top 3 ways social screening helps firms: 

  1. It prevents the cost of a bad hire. What is the price of a bad hire? For law firms, it can be costly, so ensuring that full-time associates and other staff members are the best fit for that position is critical. 
  2. It protects your firm’s image. Ever heard that there’s no second chance at a first impression? This is true for all businesses, and social screening can help determine how an individual behaves in other settings.  
  3. It gives you a comprehensive view of the candidate. Although social screenings are only one component of a background check, they can give you a more rounded view of the candidate before actually working with them. 


Despite the advantages to your firm of social screening, doing it inappropriately can be illegal. So, what are the dos and don’ts of conducting a legal social screening?

How legal social media screening works

Social media law guide

The keyword here is legal. There is a heated debate between what’s legal and what isn’t when checking something so personal as an individual’s private social account. 

A social media screening is both ethical and legal when it’s done the right way. Even though research states that 7 in 10 employers check on a candidate’s social media presence as part of the hiring process, is it legal? The answer depends on how they’re conducting the research. 

Alian Wright, the author of A Necessary Evil: Managing Employee Activity on Facebook, Twitter, LinkedIn and the Hundreds of Other Social Media Sites, found that many HR professionals are leery of learning about candidates through social background checks because of its legal risks. So, what are the dos and don’ts in social media screening?

The don’ts in legal social media screening 

1. Do not check a candidate’s social media activity by yourself. Doing so opens up potential problems, e.g., discrimination lawsuits, because a person searching social media backgrounds alone can be accused more easily of bias. There is no way to prove lack of bias in this situation, even if they really didn’t allow what they found to influence their decision. 

  • According to the U.S. Equal Employment Opportunity Commission, “it is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.”


2. Do not use any sort of hacking or illegal programs. For example, it is unlawful for an employer to ask a candidate to disclose their social media accounts and login credentials in many U.S. states. 

3. Do not rely upon protected class information. Anti-discrimination laws legally guard protected class individuals. These protected classes are:

  • Race
  • Color
  • Religion or creed
  • National origin or ancestry
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Veteran status
  • Genetic information
  • Citizenship
  • Marital status

The do’s in legal social media screening 

The dos of legal social media screening are as important as the don’ts: 

1. Always inform the candidate if they’re being checked. Federal laws state that you must tell the candidate if you are running a social screening check on them. 

2. Focus on monitoring the following: 

  • Hate Speech
  • Insults and Bullying
  • Narcotics
  • Obscene Language
  • Self-Harm
  • Threat of Violence
  • Toxic Language
  • Drug-Related Images
  • Explicit/Racy Images
  • Violent Images

3. Keep in mind that the findings don’t automatically disqualify the person unless the hiring manager deems it necessary, and if that’s the case, they should have valid reasoning behind it. This is the reason that it’s critical to focus on factors like bigotry and never the protected class information.  

4. Always rely on legal social media experts and/or external third-party programs like Ultimately, the legal ramifications of a social media background check are real, and you may feel more secure with a service that will do it for you legally. 

  • Remember, when you’re opting for a DIY approach, it’s difficult to ‘unsee’ what you’ve already seen, which may land you in legal hot water. This is even more reason to rely on third-party programs or check with a legal marketing agency such as Consultwebs. 


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Your firm’s hiring process is one of the most critical aspects of hiring top talent. Like all businesses, law firms want to employ A-list candidates with strong leadership, problem-solving, critical thinking skills, and more. 

Although social screening is just one component of the background checks used today, it can provide additional useful information about a candidate. However, the line between a legal versus an illegal social background check is thin, and the repercussions of an illegal social background check could be severe. 

If you’d like to reduce the financial and human risk associated with hiring new employees safely, our legal social media experts are here to help you out