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Suppose Alice was applying for a new role. As part of a background check she is asked for usernames for any social media she uses. She gives details of her public Twitter and LinkedIn accounts (which have been curated as a professional persona), but neglects to mention others:

  • Stack Exchange: Some of her posts asking "beginner questions" could be considered detrimental to her performance of the role
  • Grindr: Her use of the service could reveal that she has a protected characteristic (which had no relevance to her performance of the role)
  • 4chan: Her posts included what could be considered as unpopular opinions (which had no relevance to her performance of the role)

Suppose at a later date (after she has started work at the new company) the company becomes aware of one or more of these social media accounts. Would that be a legitimate cause for termination?

Any jurisdiction would be interesting. I guess that in "employment at will" states in the US one can be fired for anything, but would hiding a protected characteristic be protected? In the rest of the world (the UK in particular) we have quite strong protections, but lying in the recruitment process is generally a good enough excuse for termination. Is there any specific protection for privacy in social media?

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    "in "right to work" states in the US one can be fired for anything" Right to work refers to laws prohibiting employers from requiring union membership or involuntarily charging union dues. The phase you are looking for is "employment at will" which is true for private sector, non-union employees without a contrary express employment contract (which is very rare) in all U.S. states except Montana, for all purposes except for unemployment benefits.
    – ohwilleke
    Jun 6, 2022 at 20:10
  • Your main protection would just be to refuse to talk about it. What have my social media accounts have to do with my job?
    – Neil Meyer
    Jun 7, 2022 at 14:24

2 Answers 2

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Even in the 49 U.S. states that are "employment at will" states in the U.S., there are reasons for which termination of employment is prohibited under both state and federal law, and termination without cause entitles an employee to unemployment benefit if certain other conditions are met.

Most unionized employees, most public sector employees, most private sector employees in Montana, and a small number of employees (mostly senior management) with written employment contracts that so provide can only be fired for cause.

There is a split of authority in the U.S. on the status of not making full disclosure is something that the employer required you to disclose and that you represented that you did disclose in the hiring process, such as your social media accounts. This is commonly called "resume fraud" even though it actually applies more broadly than resumes. Also, sometimes the question might be resolved differently under parallel state and federal laws.

In general, in the U.S., asking about social media accounts is something that an employer may permissibly ask unless it is use to facilitate discrimination on a prohibited ground.

One rule, which applies in some jurisdictions, is that "resume fraud" (i.e. a material misstatement in a resume or employment application) discovered by an employer after an otherwise wrongful termination can serve as a lawful basis for terminating employment that excuses the wrongful basis for termination of employment (at least assuming that the information withheld or misrepresented was on a matter that the employer could lawfully consider). Even if the information not disclosed was not itself a basis upon which the employer would not have hired someone, the dishonestly in the hiring process would be a basis for termination of employment.

For example:

The Seventh Circuit, which covers Indiana, Illinois, and Wisconsin, has consistently held that it’s permissible for employers to reject job applicants and fire employees who are suspected of engaging in resumé fraud. The rationale for the Seventh Circuit’s reasoning is very straightforward: lying to employers is a legitimate and non-discriminatory basis for turning down an applicant or firing an employee. The cases of Carter v. Tennant Co., Aubuchon v. Knauf Fiberglass and Gilty v. Village of Oak Park all stand for this proposition. . . . .

If the employer, as part of its investigation of the allegations in the lawsuit, discovers that the employee engaged in resumé fraud, can the employer use that belated discovery to its advantage? According to the United States Supreme Court, the answer is yes. More specifically, in McKennon v. Nashville Banner Publishing Co., the Supreme Court essentially held that an employer’s belated discovery of an independent, alternative basis for firing an employee (e.g., resumé fraud) can be used by the employer to reduce the plaintiff’s potential recovery. (Think of this as the employer’s “if we knew then what we know now, we wouldn’t have hired you in the first place” defense.)

In other jurisdictions, "resume fraud" is not itself a basis for discharge, although it might be used as evidence to support an initially claimed valid reason for terminating employment in the face of an employee allegation that this was a mere pretext for wrongful termination.

I don't know which states or how many U.S. states fall in each category. The former rule is the rule in almost all cases under federal private sector employment law.

A variety of cases that address the question in the context of public employment sector employment can be found here.

In addition to these general rules of law, there are also often reasonable questions of fact about whether a prospective employee substantially complied with an employer's social media disclosure question on a fact by fact basis that turns on the exact wording of the question and the reasonable interpretations that language could be given by the employee.

For example, if a question has a social media disclosure requirement and one doesn't disclose a blog, one might reasonably argue that a blog is not a social media account, depending on the language used in the question.

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Is there any protection regarding social media accounts and background checks?

It may depend on who the prospective employer is, and what role Alice is applying for.

This is pretty niche, but in the , for example, there is the National Security Vetting system that...

...applies to those in the following categories whose employment involves access to sensitive Government information or assets:

  • Crown servants, including

  • Civil servants;

  • Members of the security and intelligence agencies;

  • Members of the armed forces;

  • The police;

  • Employees of certain other non-government organisations which are obliged to comply with the Government’s security procedures;

  • Employees of contractors providing goods and services to the Government.

Note that during the application process:

Vetting confidentiality will be maintained in all but the most exceptional cases (where a risk has been identified and a decision taken to ‘manage the situation’ rather than refuse security clearance. In such cases, those tasked with managing the risk will need the appropriate information in order to do this effectively.1)

And that:

Lying or concealing information on a vetting questionnaire or at interview is viewed very seriously because it is taken as evidence of unreliability and/or dishonesty. Indeed your clearance could be refused because you lied, even though what you were seeking to conceal would not in itself have caused a problem. Furthermore, your clearance could be removed at a later date if the lie subsequently comes to light. It is simply not worth it.

Although problematic, it's not an entirely insurmountable as there is an appeals process for failed or withdrawn clearance culminating with the Security Vetting Appeals Panel (SVAP) who...

...provide a final means of challenging a decision to refuse or withdraw national security vetting.

But this would require full disclosure to the SVAP of the reasons why the requested and required information was withheld, which would be kept in accordance with their privacy notice.


1It is extremely rare for an applicant's vetting information to be disclosed to an employer and this last point does not appear relevant to the question but I've included it for completeness.

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