Employers can learn a great deal about job applicants and employees from social media, but what they can and should do with that information is far less clear. Should employers proactively review publicly available social media accounts before making a hiring decision? Could doing so identify potential issues before an offer is made or publicly announced? Or does routinely searching applicants’ personal online activity create more legal and practical risks than benefits?
A recent incident involving the long-running Broadway musical Hadestown illustrates the issue. On July 29, 2026, the producers of Hadestown announced that actor Geno Segers would join the musical’s new principal cast beginning September 1, 2026. Days later, clips from videos on Segers’s YouTube page resurfaced online, including comments concerning transgender rights and pronoun usage, prompting widespread criticism from theater fans. The producers subsequently announced that they and Segers had “mutually agreed” that he would no longer join the production.
The episode illustrates both the potential value and the risks of pre-hire social media screening. A review may identify public statements or conduct that could create workplace, client, or reputational concerns before a hiring decision becomes public. But there is no one-size-fits-all approach. Whether screening makes sense depends on the employer, its industry, and the position involved.
Key Takeaways
- There is no one-size-fits-all approach to social media screening. Employers should consider their industry, the nature of the position, the position’s expected public visibility, and the legitimate business interests at stake before deciding whether to conduct a review.
- Social media screening may help identify publicly available conduct that has a meaningful connection to a position or could create workplace, client, or reputational concerns, particularly for public-facing, senior, spokesperson, or other highly visible roles.
- Screening also carries risks. Employers may learn protected or irrelevant personal information, encounter misleading or out-of-context material, or create discrimination and consistency concerns if searches are conducted without a defined process.
- Employers that conduct social media screening should generally develop a consistent approach addressing when reviews will occur, what information is relevant, who will conduct them, and how identified information will be evaluated.
- Even when an employer lawfully obtains social media information, federal, state, and local laws may limit whether the employer can act on what it finds.
As a general matter, and subject to applicable federal, state, and local law, employers may review information that applicants and employees make publicly available on social media and, in many circumstances, may consider that information in making employment decisions.
In New York, Labor Law § 201-i generally restricts employers from requiring access to employees’ and applicants’ personal accounts but provides that the statute does not prohibit or restrict employers from viewing, accessing, or using information that is publicly available or can be obtained without requiring access credentials. New Jersey law, N.J.S.A. 34:6B-5 et seq., similarly prohibits employers from requiring or requesting access to a current or prospective employee’s personal social networking account but provides that the law does not prevent employers from viewing, accessing, or using information available in the public domain. Other jurisdictions may impose different or additional restrictions.
The fact that an employer can review public social media, however, does not necessarily mean that it should do so for every applicant or every position. Each employer should consider what it expects to gain from the search and whether that information has a meaningful relationship to the position.
There are legitimate reasons why an employer may choose to conduct social media screening. A review may identify public statements or conduct that bear directly on an individual’s ability to perform a particular role, interact with customers or coworkers, protect confidential information, or serve as a public representative of the organization. It may also allow an employer to identify a potential issue before a hiring decision is announced and before the individual begins interacting with employees, clients, customers, or the public.
Those considerations may carry different weight depending on the employer and the position. For public-facing, senior, spokesperson, or other highly visible roles, an individual’s public conduct may have a meaningful connection to the employer’s reputation, customers, or business relationships, making the case for a pre-hire review stronger. For positions with little to no public-facing component, the potential value of examining an applicant’s personal social media activity may be considerably lower.
Screening also carries meaningful risks. A search may reveal information about an applicant’s race, religion, age, disability, sex, sexual orientation, gender identity, genetic information, or other characteristics protected under applicable law that the employer otherwise would not have known. Protected characteristics generally may not lawfully influence the employment decision, and knowledge of them could complicate the employer’s ability to defend a challenged decision.
Social media may not provide a reliable or complete picture of an individual. Posts may be old, taken out of context, sarcastic, altered, attributable to someone else, or unrelated to the position. Even when social media content may lawfully be considered, employers should consider how much weight it should receive in the employment decision rather than treating any objectionable or controversial post as automatically disqualifying. Relevant considerations may include how closely particular content relates to the job, when it occurred, whether it is reliable and complete, whether the individual should have an opportunity to provide context, and how comparable situations have been treated.
Employers that choose to conduct social media screening should consider using a defined and consistent process rather than conducting ad hoc searches. That may include deciding which positions warrant screening, when during the hiring process the review will occur, what information is relevant, and who will conduct the review. Having someone other than the ultimate decision-maker conduct the initial review may help filter out protected or irrelevant information before it reaches the decision-maker.
If an employer obtains a social media background report from a consumer reporting agency for employment purposes, the report may constitute a “consumer report” under the Fair Credit Reporting Act. When the FCRA applies, it generally requires a stand-alone written disclosure and written authorization before the report is obtained. Before taking adverse action based in whole or in part on the report, the employer must provide the individual with a copy of the report and a summary of FCRA rights. If the employer then takes the adverse action, the FCRA requires an additional adverse-action notice. State and local requirements may also apply.
For current employees, different considerations arise. An employer may have a stronger reason to review public social media in response to a specific workplace complaint, threat, disclosure of confidential information, or other concern than to routinely monitor employees’ personal online activity.
Even when an employer lawfully obtains social media information, it must separately consider whether it may act on what it finds. The First Amendment generally does not restrict private employers or provide their employees with a broad constitutional right to make public statements without employment consequences. But other laws may protect particular activities or expression.
New York Labor Law § 201-d, for example, protects certain qualifying lawful off-duty activities, including specified political and recreational activities. “Political activities” are defined relatively narrowly to include running for public office, campaigning for a candidate, and participating in fundraising for a candidate, political party, or political advocacy group. Merely expressing a political or social opinion online does not necessarily qualify as protected “political activity” under § 201-d.
The National Labor Relations Act may protect covered employees who use social media to act with or on behalf of coworkers concerning pay, benefits, working conditions, or other workplace issues, including in nonunion workplaces. Other federal, state, and local laws, employment agreements, collective bargaining agreements, and whistleblower and retaliation protections may impose additional limitations.
Ultimately, employers should weigh the potential benefits of social media screening against its legal and practical risks based on the industry and position involved. For highly visible or public-facing roles, identifying significant issues before hiring may justify a carefully structured review. For other positions, the limited relevance of an applicant’s personal online activity may not justify the risks.
Whatever approach an employer adopts, it should have a legitimate business purpose, be applied consistently, and avoid becoming an unrestricted inquiry into applicants’ or employees’ private lives.
If you have questions about social media screening, employee off-duty conduct, or related employment issues, please contact the author or your attorney at McCarter & English LLP.