We never wanted to know the national origin or race of an applicant basing our (apparently naïve) decision strictly on their bona fide qualifications - work experience, skill sets and our ultimate estimation of whether candidates could perform to expectation in our work environment. Obviously when candidates evolved to the face-to-face interview stage all that became moot, but by then the die had already been cast. Employers shouldn’t care about your race, gender, religion, sexual orientation, height and weight, etc. though an overall acceptable appearance in a work environment (dress codes) is apropos. Most folks out there don’t want to work for and with companies that illegally discriminate. If you don’t care, then read no further.
Fast forward to the 21st century and the age of social media. From the widespread availability of the Internet in the mid-1990’s to the present is a millisecond in time. But in that short interim the employment landscape has completely changed. Facebook, LinkedIn, Twitter, e-mail and the myriad other social media apps and programs that allow us to communicate with each other globally and at light speed have become a two-edged sword. On the negative side, many companies and schools are now accessing social media sites to gather information on their employees and students for a variety of reasons – mostly with negative implications. Lest we think this a tsunami “all of a sudden” phenomenon, some hiring managers have been doing this for years thinking they have unlimited access and a right to the information pot at the end of the rainbow. It seems some potential employers now want to know not only your race, gender and religion but also the organizations you belong to, if you party hearty, the people with whom you associate, your political persuasion and other non-job-related information.
Of course we need to ask how much of the data we see on the Internet is real? Probably some, maybe most, but what about those who would forward lies, faux news, pranking, vendetta and just plain trash talk? We know of situations where Facebook accounts have been created by parties other than the subject of the site. Generally information gleaned from these sites is not dependable, can be taken out of context and certainly not relevant to any job search or school application.
Even though the potential for abuse is absolutely huge, we see would-be employers going over on the Internet and even on Facebook and Twitter in order to gather data about candidates despite the fact there is no way to know if what's posted is even true. Sadly, candidates are generally not given the opportunity to dispute negative information with prospective employers making decisions based on what might be slanderous and/or false and irrelevant information. There are rumblings that the Consumer Financial Protection Bureau (CFPB) the new overseers/enforcers of the Fair Credit Reporting Act (FCRA) are looking at this potential for abuse with an eye towards expanding their scope and authority.
Under the purview of the FCRA potential employers may engage Consumer Reporting Agencies to inquire about information relevant to job related criteria. Potential employers mostly unfettered and currently outside the jurisdiction of the FCRA, however, are now engaging in over-the-shoulder surfing, asking for Facebook passwords or “forced friending” as a condition of consideration for employment and in doing so are playing a dangerous game that could expose their companies to tremendous liability, not to mention the loss of goodwill and respect in the business community. These firms give themselves up for what they are - companies using social media as a free pass to invade their candidate’s, employee’s or student’s privacy. We are not surprised that many candidates asked to reveal their social media passwords and other private information have dismissed those employers from consideration. Other Facebookers anticipating prying eyes have created “clean” sanitized Facebook sites (even with Friends) all designed – even customized – for a specific employer. Sure, you can have my passwords - Ah, justice…
We feel this intrusion into the privacy of job applicants just plain wrong, unethical and when this issue goes to court will be found a violation of privacy and an illegal employment practice. That appears inevitable as six states--California, Delaware, Illinois, Maryland, Michigan and New Jersey prohibit requesting or requiring an employee, student or applicant to disclose a user name or password for a personal social media account. In California, Illinois, Maryland, and Michigan laws apply to employers. California, Delaware, Michigan and New Jersey have laws that apply to academic institutions. In all, fourteen states introduced legislation in 2012 that would restrict employers from requesting access to social networking usernames and passwords of applicants, students or employees. The list of states that have either passed or proposed similar legislation is growing even including arch conservative Texas. Nice…
There is also a movement afoot to update federal regulations including the Stored Communications Act (SCA) and the now antiquated (1986) Electronic Communications Privacy Act (ECPA) while state legislators (as reflected above) are working to pass legislation that will make access to private social network and other electronic records illegal. The National Relations Labor Board (NLRB) and the NCAA have even weighed in on the use of information contained on social media by employers and schools.
So why are companies harvesting the data contained in social media for employment purposes? First of all, because it’s there, readily available and for the most part – free. So how do companies use this information? Recent surveys reflect that a significant percentage of companies that engage this practice admit that they are looking for dirt to eliminate or screen applicants out, not reinforce their candidacy. Others say they use social media as a networking tool to advertise and forward available positions and video job descriptions to their potential candidate pool. The former is suspect and will probably be held illegal while the latter is a reasonable and even credible way to attract formidable candidates.
Facebook has even waded into the controversy issuing a statement declaring their objections to the practice not only on ethical grounds, but on legal grounds as well. Facebook warns that this practice, "undermines the privacy expectations and the security of both the user and the user's friends" and "potentially exposes the employer who seeks this access to unanticipated legal liability."
Erin Egan, Facebook's chief privacy officer expanded on that potential liability stating that these companies may reap the whirlwind as, “For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person." We agree and wonder what the company does with information gleaned from, for example, Facebook that would otherwise be illegal to develop and/or pursue? It would be an easy segue for a rejected candidate to pursue a charge of discrimination and a company guilty of that practice hard pressed to prove they didn’t use that information. The lawyers get richer…
No doubt most prospective, active candidates have an expectation of privacy in their lives. Run a background/credit check, police report, drug screen, personality profile, etc., but don’t invade the sanctity of my hearth and home. We certainly understand but caution that if certain widely accepted community codes of conduct or behaviors or laws are violated (with convictions), that potential employer has the right, within limits, to that information and make that a part of their employment decision - if germane to the position. If any institution charged with maintaining legally approved codes of conduct or behavior or law enforcement with probable cause and a warrant have a right, indeed obligation, to pursue any resources available to them including email, social networking accounts, really any and all of your private electronic records. This is the other side of that two-edged sword we referenced earlier.
Having said that we need to all get on the same page and put this whole issue in perspective. The opinions and perspectives embraced by many mirror that time when Congress wrote and passed the Electronic Communications Privacy Act (ECPA) in 1986. There was no World Wide Web, the first Internet Service Provider (ISP) didn’t open its doors until 1990, hardly anybody carried cell phones and those that were available (three brands) were woefully primitive, the size of a brick and in today’ dollars cost about $6,904. There was virtually no “social networking” and if someone in 1986 had suggested our reality now they would have been perceived as a Trekkie or a Dick Tracy wannabe (look it up). What is commonplace and taken for granted in 2013 was science fiction back in 1986. It was on that platform that many of our current laws were enacted. We feel that review of our current and anticipated technologies, their effect on our lives including the potential for abuse is in order.
Time also for the realization that all those who use social media need to start acting responsibly in both our personal and professional lives. We do have a choice about the information we share literally with the rest of the world – or at least with your “Friends”. If you want to act out and highlight what are for most folks, including potential employers, undesirable behaviors then you need to be ready accept the consequences. When you apply for a job you are, in essence, applying for a benefit and not an entitlement. Candidates have to prove their worthiness…
As George Orwell predicted, big brother is, indeed, watching and has been doing so for some time – and well before 1984. It’s just easier now in a society where government and corporate, etc. surveillance is omnipresent. Have you watched CBS’s Person of interest? That sci-fi scenario is far closer to reality than you think.
Illegal or not our behaviors are the proof of the pudding reflecting our potential, our suitability (or not) as employees and students. As one HR pro recently opined, “Discretion and professionalism are always valued by employers. Your brand and image can be severely damaged by derogatory comments or photos.” Now what part of that don’t candidates understand?
And to those companies who would unethically (and at some future point illegally) raid the social media cookie jar, please know that Cindy Beresh-Bryant, HR consultant with HR Solutions by Design says it all for us and should for you, “While we have more candidate screening resources at our fingertips, there is no replacement for good old-fashioned, behavioral-based interviewing and background checks that are fully disclosed and separate a jobseeker’s professional and personal life.”
To those righteously motivated candidates of the world – Happy Hunting and much success. To those employers intent on harvesting social media, know that your brightest and best candidates may decide that your behavior is unethical and your company is not for them. You lose…
Aye,
Ned Buxton
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