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Invasion of Privacy or Good Hiring Practice? Use of Facebook and Social Media by Employers

Update: Facebook has responded to this controversy: It is warning employers not to demand passwords of job applicants and employees because it is an invasion of privacy. The Company’s Chief Privacy Officer, tells applicants to never reveal their password to an employer.

above-the-bar-logo.jpgOur White Plains Employment Lawyers have been asked about whether employers should use social media in hiring decisions. Many employers have been reluctant to use Facebook or other social media sites to investigate prospective job applicants for fear of discrimination claims. For example, if an employer viewed and considered the contents of a candidate’s Facebook page and then rejected the applicant, the company could face an employment discrimination claim. Specifically, the prospective employee could allege that Company learned information about him or her that it is could not use in the hiring process (e.g., applicant’s race, age, gender, disability status, etc.). Despite the risk, some employers still prefer to view a candidate’s online profile. In order to minimize legal exposure, companies will assign a HR employee who is separate from the hiring manager to review a candidate’s online profile to verify it is consistent with the job application. Under this system, this HR employee does not speak with the hiring manager unless a red flag is detected such as a material misstatement in the employment application.

However, recently, many companies are taking a more aggressive approach towards social media and asking for employees to provide their personal passwords or allow access to private profiles on sites such as Facebook, Twitter, and LinkedIn, to name just a few. Many applicants and employees believe that it is an invasion of privacy and have to balance a possible invasion of privacy versus possibly getting employment in a tough job market. Many Facebook users are creating two accounts, one for their personal use and one to provide to employers if asked. Employees have the right to refuse; however, private employers may have the right deny the employee employment or continued employment. Employers argue they have a legitimate need to view online profiles. For example, they may want to ensure that employees are not disparaging the company, its products or harassing other employees. In addition, studies have shown that a brief review of a candidate’s online profile can be very useful in revealing more information than a personality test.

More than ever, it is imperative for companies to have a well-crafted social media policy. Our attorneys have helped many companies develop and implement policies depending on their companies’ needs. These policies coupled with best practices can help many employers avoid costly litigation including claims of discrimination.

Illustration of an Organization Using Facebook: Last year, a corrections officer at Maryland’s Department of Corrections (“DOC”) complained to the ACLU that he was forced to provide his Facebook user name and password during an interview. The DOC wanted to make sure that they did not hire anyone affiliated with a gang. After the ACLU intervened, the DOC suspended the policy but came up with another one. Potential hires are now asked during their interviews to log into their Facebook accounts and allow the interviewer to watch the potential hire go through posts, friends, pictures and any other material that may be behind the privacy wall.

Of the 2,689 applicants it reviewed through social media, the Maryland DOC denied jobs to 7 of them because their sites contained pictures of them with gang signs. It also did offer jobs to 5 out of 80 employees hired in the last three hiring cycles who did not provide social media access. Access could be a double edged sword for employers.

Given the impact of social media’s influence on individuals’ lives as well as businesses, the use of social media in employment settings is evolving. Maryland and Illinois have proposed legislation that would make it illegal for employers to ask job applicants to provide passwords to their social media sites during job interviews. Perhaps other states will follow their lead. In the meantime, companies must be smart as to how they use social media. If you would like to discuss how your online profiles were used in your hiring situation, contact our Social Media Employment Law Attorneys at (800) 893-9645.

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