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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.

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“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.”

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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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