In the applicant process, some employers are going beyond merely searching a person’s public social networking profiles and instead asking for passwords and to log in as the user to have a look around.
Perceived by many in the legal world as one of the most blatant privacy violations – a growing number of employers have somehow justified this practice on the basis that candidates who have nothing to hide should have no problem turning it over. So is this flawed logic or due diligence of employers?
Some companies have grown increasingly savvy – instead of simply demanding logins and passwords, some ask applicants to “friend” human resource managers or to log in to a company computer during an interview.
Asking for a candidate’s password is more prevalent among public agencies, especially those seeking to fill law enforcement positions such as police officers or 911 dispatchers – apparently justified as a sort of criminal background check – i.e. search for gang affiliations.
Significant questions have been raised about the legality of the practice. Interestingly, giving out Facebook login information violates the social network’s terms of service. The Department of Justice regards it as a federal crime to enter a social networking site in violation of the terms of service, but during recent congressional testimony, the agency said such violations would not be prosecuted. Great. Now what?
I can’t help but ask the relevance question here. What does revealing private information have to do with job performance? If an employer can’t view your Facebook page because it is “private” – that’s where the search should stop.
States have been introducing legislation to address this privacy question. Maryland became the first state to propose legislation that would prohibit employers from demanding social media passwords. That bill has not yet been enacted into law, so candidates are still left holding their breath in interviews.
In Illinois, the legislature just introduced a proposed amendment to the state’s Right to Privacy in the Workplace Act that would make it illegal for an employer to gain access to an applicant’s social networking account during the hiring process.
The California state legislature recently introduced a proposed law entitled “employer use of social media.” The proposal provides in part:
“Under existing common law, an employer has a duty to exercise reasonable care in employing a person and is required to use reasonable care to discover whether a potential employee is unfit or incompetent. This bill would provide than an employer does not fail to exercise reasonable care . . . by the employer’s failure to search or monitor social media, as defined, before hiring the employee. This bill would also prohibit an employer from requiring an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee.”
While the proposed California law would preclude the practice of demanding social media passwords by employers, it also provides protection to employers who argue that this era of social media imposes a burden on them to do comprehensive background checking in the first place.
More states and eventually possibly Congress will propose and enact legislation prohibiting the practice of demanding candidate passwords during the hiring process. Until then, before you ask for a candidate’s password or to login during an interview – think about the real need for that information. While many candidates currently cannot afford to say no, as the law develops and the economy grows – more candidates will be able to refuse that request and most likely, any job with your organization.
Interested in more legal issues for recruiting? Join us this May 22-24 in Chicago for Social Recruiting Strategies Conference – Nicole Strecker, Esq., Managing Director of STA USA, Inc will discuss Legal Guidelines for Recruiters.
