Hiring managers have reviewed job applicants' and employees' public profiles since the widespread popularity of social media. But what happens when users set their profiles to private so that only selected people or certain networks can view them? The answer for some employers - ask the job applicant for his or her password or ask the applicant to "friend" the hiring manager so the manager can view the applicant's private posts.

In one example, a security guard at the Maryland Department of Public Safety and Correctional Services returned to his job after taking a leave for his mother's death. At his reinstatement interview, he was asked for his login and password. According to the agency, it checks employees' and applicants' social network posts for gang affiliations.

Although the man was surprised by the request, he complied. "I needed my job to feed my family. I had to." The American Civil Liberties Union (ACLU) complained about the practice, and the agency amended its policy. Hiring managers now ask job applicants to log in themselves during interviews. The case has inspired Maryland legislators to propose a law that forbids public agencies from asking for access to private social networks.

Meanwhile, in Illinois, the McLean County sheriff's office is one of several sheriffs' departments that ask applicants to sign into social media sites for screening. The practice has been part of the background check process since 2006. The chief deputy explained that applicants have a right to refuse, but no one has ever done so. When asked what sort of information would jeopardize job seekers, he said that it depends on the situation, but might include inappropriate pictures or relationships with people who are underage or other illegal behavior.

Some organizations, like the sheriff's department in Spotsylvania County, Virginia, ask applicants to "friend" background investigators for jobs at the 911 dispatch center or law enforcement positions. Other employers require new hires to sign non-disparagement agreements that prohibit them from posting negative comments about an employer on social media.

According to E. Chandlee Bryan, a career coach and co-author of the book The Twitter Job Search Guide, individuals seeking employment should always stay aware of what information is on their social media profiles and assume an employer is going to see it. Although Bryan is concerned about employers demanding login credentials, she feels that as long as an employer asks to see a social network profile through a "friend" request, there is no violation.

Giving out one's social media login information violates the social network's terms of service. But experts say that those terms do not have any real legal weight. The Department of Justice (DOJ) considers it a federal crime to enter a social networking site in violation of the terms of service. However, during recent congressional testimony, the DOJ admitted they would not prosecute violations. "Proposed laws would forbid employers from asking for job seekers' social media passwords," www.foxnews.com (Mar. 20, 2012).

Commentary

On March 23, 2012, Erin Egan, Chief Privacy Officer of Facebook, issued a statement regarding employers seeking access to profiles of job applicants. According to Egan:


While Facebook and others protest the practice based on privacy concerns and remind employers not to discriminate during the hiring process, employers, nevertheless, have a responsibility to perform due diligence when hiring. Employers have a right and duty to check job applicants' and employees' public posts as part of background checks to make sure they are hiring the right person for the job.

Furthermore, employers should check public postings on social networking sites on a regular basis to make sure that illegal discrimination and harassment does not occur. Just as an employer can incur liability for discrimination in hiring, discriminatory social media posts made by or against its employees may support EEO charges against the employer.

Currently, there is no law prohibiting private employers from asking to view job applicants' social media posts, public or private. The challenges described in the source article were referring to the tougher scrutiny public employers face when their policies and practices are challenged on privacy grounds.

Employers should watch closely in the future for proposed legislation, new laws, and developing case law on this issue. Most importantly, before asking for access, employers should ask for the opinion of an attorney to make sure that such requests are compliant with the law.

This informational piece was published on April 12, 2012.