Is It Legal for Employers to Google Job Candidates? What the Rules Actually Say

The short version

Public information is public. If you post something that anyone can see, an employer can generally see it too. The law focuses less on whether an employer looks and more on what the employer does with what it finds, and on how formal background checks are handled.

This article covers federal rules in the United States, plus examples of the kinds of protections some states add. Rules change and vary by location and employer size, so treat this as a starting point.

Informal searches by the employer

When a recruiter or hiring manager types your name into Google or looks at your public profiles, that is an informal search. Federal law does not generally require them to tell you or get your permission first. You usually will not know it happened.

The Fair Credit Reporting Act's notice and consent requirements apply to consumer reports prepared by consumer reporting agencies. When an employer does its own search, it is generally not getting a consumer report, so those specific requirements usually do not apply. However, if an employer hires an outside company to compile social media or online information about you for hiring purposes, that report can be a consumer report, and the FCRA rules can apply.

Background checks from reporting companies

The FCRA covers background reports from companies in the business of compiling them. The Federal Trade Commission explains your rights:

You can dispute inaccurate or incomplete information with the reporting company. Our articles on what background checks can report and disputing a background check error cover this in more detail.

• The employer must tell you it may use information from the report and must get your written permission before getting it.
• If the employer plans to take an adverse action, such as not hiring you, based on the report, it must give you a copy of the report and a summary of your rights before making the decision final.
• After taking the adverse action, the employer must tell you, including the name of the reporting company, and that you can dispute the report and get a no-cost copy within 60 days.

Anti-discrimination limits

The U.S. Equal Employment Opportunity Commission says it is illegal for employers to make employment decisions based on race, color, religion, sex (including transgender status, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information. That applies to hiring, firing, pay, promotions, and other terms of employment.

An online search can reveal many of these things: your religion from a church photo, your age from a graduation year, a disability from a fundraiser post, your national origin from your language or family photos, or a pregnancy announcement. Learning these things is not itself illegal, but using them in a hiring decision is.

The EEOC's guidance on background checks also notes that employers must treat applicants equally. For example, it is illegal to check the backgrounds of applicants of one ethnicity but not others, or to apply different standards based on protected traits.

Federal anti-discrimination laws apply to employers above certain sizes. Many states have similar laws that reach smaller employers.

Protected workplace speech

Under the National Labor Relations Act, many private-sector employees have the right to act together to improve pay and working conditions. The National Labor Relations Board describes this as protected concerted activity, and it can include talking with coworkers about wages or working conditions, including online. This protection mainly covers current employees and their relationship with their employer, and it has limits. It does not protect every complaint or every post. But if you are worried that a past post about workplace conditions could be held against you, it is worth knowing this protection exists.

State protections

Some states go further than federal law. Examples of the kinds of rules that exist in various states include:

Which protections apply depends on your state and sometimes your city. Your state labor department or fair employment agency website is a good place to start.

• Social media privacy laws that bar employers from asking for your passwords or requiring you to log in to personal accounts in front of them.
• Off-duty conduct laws that protect lawful activities outside of work, such as legal political activity or legal use of certain products away from work.
• Fair chance or ban-the-box laws that limit when and how employers can ask about criminal history.
• Limits on using arrest records that did not lead to conviction.

What employers may consider

Employers can generally consider job-related information they find, such as:

The key question is whether the information is job-related and whether it is applied consistently.

• Whether your work history matches your resume
• Public threats, harassment, or violent statements
• Disclosure of a former employer's confidential information
• Conduct that directly relates to the job, such as a driver with public posts about drunk driving

Can an employer ask for my password?

Many states prohibit employers from requiring applicants or employees to share social media passwords or log in to personal accounts in front of them. Even where it is not specifically prohibited, you can politely decline and offer your public professional profile instead. If an employer insists, that is worth noting and possibly discussing with an attorney.

What if I think a search was misused?

It is usually hard to prove what an employer saw or why it decided not to hire you. Still, there are steps you can take:

• Keep records. Save the job posting, your application, emails, and notes from interviews with dates.
• Watch for patterns. Did an interviewer mention something personal they could only have found online?
• Ask for the report. If a background check was used, you have the right to a copy.
• File a charge or complaint. The EEOC handles federal discrimination charges, and there are time limits for filing, generally 180 calendar days, extended to 300 days where a state or local agency enforces a similar law. State agencies handle state-law claims.
• Talk to an attorney. Many employment attorneys offer consultations.

Protecting yourself before anything happens

The practical side is the same whether or not an employer follows every rule:

Our before-you-apply checklist puts all of this in order.

• Set personal accounts to private if you do not want employers to see them.
• Keep professional profiles accurate and public.
• Review old public posts. See old posts and photos.
• Check for errors in formal records before you apply.
• Prepare explanations for anything you cannot change.

A note on fairness

Most employers want to hire well and treat people fairly. The rules exist because snap judgments based on online information can be wrong or biased. Knowing the rules helps you stay calm, ask the right questions, and act if something goes wrong.

Questions to ask during the hiring process

You are allowed to ask questions about how an employer screens candidates. Reasonable questions include:

Asking these calmly signals that you know your rights without sounding defensive. Many employers appreciate the professionalism.

• "Will this role involve a background check, and which company runs it?"
• "At what point in the process do you run the check?"
• "If something comes up, will I have a chance to respond before a decision is made?"

If you are already employed

The same principles apply to current employees, with some differences. Employers often have social media policies for staff, and violating a lawful policy can lead to discipline. At the same time, policies cannot override protected rights, such as the right to discuss pay and working conditions with coworkers. If you are disciplined for a post, read your employer's policy, keep copies of everything, and consider getting advice before responding.

Common questions

Sources

1. Employer Background Checks and Your Rights (Federal Trade Commission)
2. Background Checks: What Job Applicants and Employees Should Know (U.S. Equal Employment Opportunity Commission)
3. Prohibited Employment Policies/Practices (U.S. Equal Employment Opportunity Commission)
4. Interfering with Employee Rights (Section 7 and 8(a)(1)) (National Labor Relations Board)
5. Time Limits for Filing a Charge (U.S. Equal Employment Opportunity Commission)