It’s a story that has chilled job-seekers and privacy advocates, and that made such a splash when it broke early last week that Congress has already taken its first pass at crafting a response.
Many employers have apparently been asking for access to job candidates’ Facebook pages, either by demanding that interviewees cough up their user names and passwords or friend their companies’ human resources managers.
Indeed, the story was perceived as such an Orwellian outrage that 184 House members voted on Tuesday to allow the FCC to prevent employers from asking candidates to surrender their passwords. The measure was ultimately blocked by House Republicans, but not before Democrats got in their two cents.
“It only makes sense because those that are using these kinds of social media have an expectation of privacy,” said Ed Perlmutter (D-Colo.) on the House floor. “They have an expectation that their right to free speech or their right to free religion will be respected when they use these social media outlets.”
The scramble to legislate against some employers’ crass and clumsy invasions of privacy shows to what extent new technology has outrun the law, but that doesn’t mean employers are completely safe from a legal standpoint when it comes to accessing information on social media sites.
Of course, it’s obvious to most fair observers that requesting such personal information violates both common sense and propriety. (Orin Kerr, a George Washington University law professor and former federal prosecutor, said, “It’s akin to requiring someone’s house keys.”) However, more alarming is the fact that doing so could open up an employer to serious legal liabilities.
“I think it could potentially subject the employer to liability under existing discrimination laws,” said Annie Raupp, an attorney with the Labor and Employment Team at Godfrey & Kahn in Green Bay. “We’re specifically talking about not just reviewing the pages that are publicly accessible – that’s one thing – but when you’re going the next step to ask for passwords, we’re no longer dealing with publicly accessible information, and private pages of applicants or employees may contain information that employers are currently prohibited from asking applicants under existing discrimination laws, such as age, marital status, religious affiliation, etc.
“So, arguably, this is a way of directly accessing information that the employer is otherwise prohibited from obtaining. So if that information is then used to disqualify a candidate or make some sort of adverse employment decision, then the employer is potentially exposing themselves to a discrimination claim.”
Indeed, the kind of information that a job candidate or employee could attempt to use as the basis of a discrimination claim could be very far-ranging, perhaps even extending to photographs on a Facebook profile, says Randy Enochs, a labor and employment attorney with Enochs Law Firm in Milwaukee.
“What if somebody spent some time in the hospital [because of a disability] and there’s pictures?” said Enochs. “What if somebody’s got church activities? In Wisconsin, you’ve got lawful acts discrimination. So if, for example, someone just likes to drink and party. Well, it’s not illegal to drink and party, so if an employer terminates on the basis of that, [there could be repercussions]. … What if the sexual orientation is revealed? There’s just all kinds of issues.”
Of course, asking for a candidate’s password is something that strikes most employers as beyond the pale, and few would resort to such measures anyway. But what about going with what some might consider a non-nuclear option: simply asking job candidates to friend someone in the company, such as a human resources manager, or “shoulder surfing” (i.e., asking candidates to click on specific links in their profiles while the interviewer watches)?
“It’s interesting, because potentially even a public page might have some information that employers are not supposed to use in hiring decisions, such as age or marital status,” said Raupp. “The difference there is that the information is public. And employers have used it as a recruiting practice in the past – employers have been doing this for a while, just going on Facebook and checking things out. But the privacy concerns are heightened when asking for access to private information.”
Raupp also noted that trolling around for private information in job candidates’ profiles might not be such a good idea for less obvious reasons:
“I think this is a little more tangential … but say [an employer] accesses a page using the employee’s password and, for example, they find information that suggests a crime has been committed. What obligation does the employer have to act in those circumstances?”
Facebook’s take
Last Friday, Facebook itself weighed in on the controversy. In a statement, the company’s chief privacy officer said Facebook would take action to protect the privacy of its users, up to and including taking legal action against companies that ask for login information. The company noted that the practice also undermines Facebook’s policy on account security, which explicitly tells users never to share their password or let anyone else access their account. In addition, Facebook stated that asking for access to a user’s profile could expose companies to discrimination claims, echoing the warnings of Raupp and other employment law attorneys.
Right now, at least two states, Illinois and Maryland, are looking at prohibiting employers from asking job candidates for their Facebook login information. And Sens. Chuck Schumer (D-N.Y.) and Richard Blumenthal (D-Conn.) have asked the Equal Employment Opportunity Commission and the Justice Department to investigate whether the practice is already against the law.
Of course, that could be just the first trickle in what turns out to be a deluge. According to Raupp, the legal landscape could very well take shape sooner rather than later in order to allow people’s concerns over privacy to be addressed once and for all.
“I wouldn’t be surprised if there’s federal legislation introduced to specifically outline what employers can and cannot access with respect to social media,” said Raupp. “I also see it happening on a state level. A lot of states have already introduced legislation regarding these practices, and I wouldn’t be surprised to see that spread to other states as well.”
Sign up for the free In Business Wisconsin Report – your weekly resource for local business news, analysis, voices, and the names you need to know. Click here.
