Facebook privacy: Can firms legally demand passwords from job applicants?

On Friday Facebook criticized the new practice of screening job applicants as 'alarming,' and some employment specialists say it could expose firms to legal land mines.

By , Staff writer

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    Some private employers are asking potential employees for their Facebook passwords. Is that going to far?
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Social Intelligence Corp. seeks to help its corporate clients “gain a deeper insight into both professional and personal characteristics of potential employees, identifying negative behaviors and activities” as well as uncovering positive attributes.

To do that, the background-screening firm, based in Santa Barbara, Calif., looks at electronic media – think Facebook and Twitter.

But while Social Intelligence says it only uses publicly available information, some other private employers are going further, asking potential employees for their Facebook log-ins and passwords – an action that Facebook’s chief privacy officer, Erin Egan, decried on Friday.

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For some time now in this age of social media hyper-connectivity, job seekers and others have had to confront the reality that what happens on social media sites does not necessarily stay on social media sites.

“We are in the age of transparency,” says John Challenger of Challenger Gray & Christmas, an outplacement firm in Chicago. “And, in an age of transparency, there are some risks.”

However, some employment specialists say employers’ use of social media to investigate future employees is potentially full of legal land mines, especially if is done by the company itself without consideration for federal and state anti-discrimination laws. Some employment executives say asking a job candidate for log-ins and passwords is a violation of privacy.

Legislators in two states, New Jersey and Illinois, as well as Sen. Richard Blumenthal (D) of Connecticut are drafting laws outlawing employers from asking for social media passwords.

“Americans are entitled to a fundamental right of privacy,” says Assemblyman John Burzichelli (D) of Gloucester County in New Jersey, sponsor of the legislation, in an interview. “Being asked to surrender your log-in and password when jobs are so tight is not appropriate.”

Employment specialists say that if an employer asks for such private information, the request puts the potential employee in a difficult situation. If they refuse to hand over their personal information, the potential employer may simply say they decided to hire someone else.

“It might raise a red flag,” says Joanie Ruge, an employment expert and chief employment analyst for Randstad, the second largest staffing company in the world. “What is this person hiding? Should I be concerned?” asks Ms. Ruge, who thinks such corporate Internet sleuthing is intrusive.

On Friday, Facebook’s Ms. Egan said the organization found it “most alarming” that employers are asking prospective or actual employees to reveal their passwords.

“If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends,” Egan wrote in a statement. “That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.” 

Under existing law, it could be unlawful for a firm to monitor an employee’s social media private postings, says William Greenbaum, a labor lawyer and a partner at Lowenstein Sandler in Roseland, N.J.

“There are multiple rulings that doing it violates the National Labor Relations Act,” he says. “Employees have the right to express themselves and their beliefs especially if they feel they need to band together for a union or to express their rights.”

But, for potential employees, the law is murky. “The applicants don’t have the rights that exist in the workplace,” says Mr. Greenbaum.

And the temptation to use social media is powerful, says Lester Rosen, CEO of Employment Screening Resources, a San Francisco-based background-screening firm that has recently issued a 25 page white paper on the issue.

“From an employers’ standpoint every hire is critical and there are huge potential risks,” says Mr. Rosen, who is also a lawyer. “Given the investment it is very inviting to go on-line and use this brand new shiny toy that allows you ostensibly to look under the hood and see what job candidates talk about and what they do outside of an interview.”

However, Rosen, whose company does not offer social media screening, warns his corporate clients that they need to approach the issue very carefully. “You could be inviting litigation and bad publicity,” he says.

For example, if a company fails to set up objective criteria it may find itself the subject of a discrimination lawsuit.

“They have to treat each applicant the same – they can’t look at age, sex, national origin, medical issues and religious affiliation,” says Rosen. “And, the important thing is that whoever does the searching is not the person making the hiring decision, so they are not exposed to the raw data so the person making the decision is not contaminated by such things as race or age.”

Obviously anyone can “Google” another person to find public information. But, what happens if a potential employee has failed to set their security settings on their Facebook account?

Rosen argues that if someone leaves the front door of the house unlocked, it does not necessarily mean everyone is invited in. “But, if you blog there is not a lot of privacy there,” he says.

Employment expert Ms. Ruge says she knows of some job candidates who have become offended when a prospective employer asked them for their Facebook password. “Some candidates have taken themselves out of the running for jobs,” she says.

Mr. Challenger says he counsels job seekers to assume potential employers are looking at their Facebook or Twitter page.

“The best way to respond to this is to make sure your Social Media pages and Twitters have nothing in there you would not want a potential employer to see,” he says. “If you are worried about this, use a pseudonym.”

Some of the state laws that might prohibit using social media for employment purposes might have exceptions for people involved in police or security work.

“It is an area we are looking at: classes of employment, for example, if you are applying to the FBI or law enforcement,” says Rep. Burzichelli of New Jersey. “Some jobs that you apply for you have to give a great deal of disclosure to be considered,” he adds. “It is an area we are looking at and will address.”

On the federal front, Senator Blumenthal, the former attorney general of Connecticut, says he is drafting legislation that would ban employers asking prospective employees for social media passwords.

In a statement to the Monitor, Senator Blumenthal says the practice “is an unreasonable invasion of privacy.” His office says it has yet to finalize the details on the proposed legislation, such as when it will be introduced or penalties for violations.

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