Guess what: hackers aren’t the only ones trying to access your otherwise-private personal online information.
Believe it or not, some employers and recruiters feel like they have a right to peek inside your Facebook account - but they’re not hacking or phishing for it, they’re just asking. In fact, some potential employees request login credentials as part of the job interview. True!
In one well-known example, the Maryland Department of Corrections asked Robert Collins for his Facebook username and password during a job interview.
But that’s not an isolated incident - employers across the country are trying to log into social media accounts to vet applicants before making job offers. Is that legal?
American Civil Liberties Union Attorney Catherine Crump says no:
“It’s an invasion of privacy for private employers to insist on looking at people’s private Facebook pages as a condition of employment or consideration in an application process. People are entitled to their private lives. You’d be appalled if your employer insisted on opening up your postal mail to see if there was anything of interest inside. It’s equally out of bounds for an employer to go on a fishing expedition through a person’s private social media account.”
Facebook says no:
“In recent months, we’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability. The most alarming of these practices is the reported incidences of employers asking prospective or actual employees to reveal their passwords.”
State and federal lawmakers have begun to say “no” too, including US Senator Richard Blumenthal, who recently announced that he is drafting a bill to block employers from seeking access to social media accounts of job applicants.
Where does this leave candidates who are asked to provide passwords as part of the interview process? While the legality of the practice is questionable, job applicants might be stuck between a rock and hard place, at least until the law catches up.
Here’s a legal perspective on this particular practice, from JD Supra contributors:
Go ahead and ask for the Facebook password, IF… (McNees Wallace & Nurick LLC)
“Among a host of other legal concerns, an applicant may claim that he or she was coerced into providing the log-in information in violation of the federal Stored Communications Act or a state law equivalent.”
Think Twice Before Asking Applicants for Facebook Passwords (Pullman & Comley, LLC)
“Legal issues aside, this story raises another, more fundamental, question—what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door, with no sense of personal space or privacy?” Read the full update»
Can Your Employer Demand Your Facebook Password? (Lawyers.com)
“Some employers have been asking for social media passwords from their employees and job applicants, according to anecdotal evidence. Not only does that give the boss a look at potentially compromising photographs, there is also the matter of private messages and Facebook email to consider. Is it legal for employers to demand that much access? It’s difficult to make a blanket judgement because every state is different and social media and Internet law is still evolving. However, in general, employers are on very shaky ground demanding access to employee or applicants’ personal social media accounts.” Read the full update»
Private Employers Can Ask for Your Login, But I Would Advise Against It (Looper Reed & McGraw, P.C.)
“While private sector employers can certainly demand to see your profiles, provide passwords, etc., I would advise against it. In fact, there is risk in using the internet to screen applicants. The short version is that you learn certain facts that are not supposed to be considered in the hiring process such as age, religion, family and marital status. You can’t unring that bell.” Read the full update»
Stop at the Intersection of Job Application and Facebook Login (Sands Anderson PC)
“Outsource background checks. There are many rules surrounding acquisition and use of credit histories and criminal background checks. If your company doesn’t comply with the multitude of rules, especially if you do not hire the candidate based on the background checks, you could face federal liability for not following the rules.” Read the full update»
“The issue at stake is whether a prospective employer’s demand for personal social media login information of a job applicant, or request for a “shoulder surfing” session, violates the job applicant’s right to privacy.” Read the full update»
Job Applicants Asked for Facebook Passwords (Mintz Levin)
“News outlets are all a-twitter about the practice of some employers to ask applicants for their Facebook login and password information, so they can have a ‘look around’ as part of the interview process…. Legislators in Illinois and Maryland agree, and have introduced bills restricting the practice.” Read the full update»
For a broader perspective on the issue, also see these advisories on the dubious practice of using social media to conduct employee background checks. As this reading list shows, socmed checks of prospective new hires can get businesses into a lot of trouble with the EEOC:
Legal Issues Surrounding Social Media Background Checks (Sheppard Mullin Richter & Hampton LLP)
“We recommended earlier this year that businesses establish an internal procedure for making employment decisions based on Internet research, so they would not run afoul of state and federal laws that prohibit job discrimination based on protected factors. The protected factors include, for example: (1) Race, color, national origin, religion and gender under Title VII of the Civil Rights Act of 1964; and (2) Sexual orientation, marital status, pregnancy, cancer, political affiliation, genetic characteristics, and gender identity under California law.” Read the full update»
EEOC Regulations Spotlight Social Media (Womble Carlyle Sandridge & Rice, PLLC)
“Does your human resources staff dig into MySpace, snagging pictures of applicants at bong parties and finding admissions of employees stealing boxes of copy paper? Does your manager learn about the latest office pregnancy or skiing accident on Facebook? Is social media an official information source for your company? If so, the EEOC is aiming to regulate your company’s use of social networking sites, especially as it relates to health data.” Read the full update»
The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree (McNees Wallace & Nurick LLC)
“Every human resources staff member knows that, especially when interviewing a potential new employee, some topics are strictly off limits. Asking one of these ‘off limits’ questions can put your company at serious risk of being sued for discrimination. The trouble is, by resorting to the use of social media, this kind of ‘off limits’ information can be collected from a potential employee even before his or her interview.” Read the full update»
Social Media Research + Employment Decisions: May Be a Recipe for Litigation (Sheppard Mullin Richter & Hampton LLP)
“We are the Google generation. We meet someone interesting, and then search the Internet to learn more about them. There is nothing wrong with doing this in the context of networking, making new friends, or pitching for business. However, searching the Internet for information about someone who is trying to get a job with your company is another matter entirely.” Read the full update»
Company Use of Social Media Best Practices: Checklist (Practical Law Company)
“Avoid making employment decisions based in whole or in part on membership in a protected class (such as race, national origin, religion and sexual orientation) revealed through social media.” Read the full update»
Social Media Issues Infiltrating The Workplace (Robert Hoffer)
“Reviewing media sites as part of the recruitment process may create some exposure to employers because there may be information on the site which identifies prospective employees as being in a protected class (age, religion, disability or marital status.) Employers are not permitted to inquire pre-hire whether a candidate is in a protected class. If such information is learned through accessing social media sites, it could open the door for the prospective employee to claim they were not hired as a result of such information.” Read the full update»
Find additional Privacy Law updates on JD Supra»