Requesting Facebook Login Information a Risky Choice for Employers
By now you have likely heard that some companies are demanding that applicants provide access to their Facebook pages during employee interviews. The rationale is that for the safety and security of their employees and customers, it is important to know whether potential employees (for example) participate in gang activity, engage in risky behavior, are members of racist or sexist groups, or simply use poor judgment. Wouldn’t it make hiring so much simpler if we could just get a glimpse into these individuals’ private lives and determine who they really are?
Not exactly. If, as a hiring manager, you request an applicant’s username and password, and she is willing to provide it, you might log onto Facebook and see pictures of her smoking a cigarette at a raucous party and boasting about her dating life. You may conclude that she is unprofessional, reckless, disorganized, and not good hiring material. Even worse, you might learn that the applicant is pregnant, has cancer, is Muslim, or supports Planned Parenthood, and then make a judgment that she is not qualified to work at your company. These actions may expose your company to liability for an invasion of privacy – not just a violation of the applicant’s privacy rights but also of every "friend" connected to that person. Additionally, you may be engaging in discrimination based on pregnancy, disability, religion, genetic information, or some other protected category. In some states, you could also be violating laws prohibiting employers from taking action against employees for lawful off-duty conduct, such as tobacco and alcohol use.
In response to what appears to be a growing trend of employers requiring applicants to provide Facebook access, representatives from several states and even the federal government now contend that this type of inquiry should be explicitly prohibited. As some Senators analogize, peeking at an applicant’s Facebook status updates and photos is akin to rifling through his mail or listening to phone calls. In March, two U.S. Senators asked the Equal Employment Opportunity Commission and Department of Justice to investigate to "help remedy ongoing intrusions and coercive practices, while we draft new statutory protections to clarify and strengthen the law. With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information." In April, Maryland was the first state to pass legislation prohibiting employers from accessing applicants’ and employees’ social media webpages. This law responds to the American Civil Liberties Union’s outcry when a corrections officer was required to provide his Facebook login as a condition of re-employment because the state agency insisted they needed the information to ensure he did not have a connection to organized crime or gang activity. Similar bans have been proposed in at least four more states. On April 27, federal legislation was introduced to prohibit this type of inquiry. The Social Networking Online Protection Act, introduced by Representative Eliot Engel (D-N.Y.) would prohibit employers, schools, and universities from requiring passwords for social networking sites or from denying employment or penalizing candidates, employees, or students for refusing to turn over such information. Even Facebook announced that this type of conduct is against its policy.
In light of the current and potential legal risks, it is simply imprudent for employers – no matter what the industry – to request social media login information from applicants and employees. Even if you believe it is important to ensure that the person you are hiring poses no security threat or legal risk, personal information gleaned from Facebook is not the answer. Not only would making decisions based on private Facebook information be potentially unlawful, but such conduct would also be premature and often unfair, according to Dr. Gene Barger, a corporate psychologist who has studied the American workforce for over 25 years. As Dr. Barger points out, the information available on one’s Facebook page may be distorted or false. Individuals have little control over photos of them that are posted on their social media pages or messages posted on their Facebook "wall."
According to Dr. Barger, a social media webpage is an "unreliable basis for making a hiring decision. There is a high likelihood of misinterpretation and rushing to judgment." Dr. Barger compares making Facebook-based employment decisions to peeping through an applicant’s home window, seeing a messy living room, and assuming that she lacks organizational skills. Simply because a home is untidy, he says, does not mean the person will lack organization or structure at work. This perspective may initially seem counterintuitive. If a manager logs onto a candidate’s private Facebook page and sees a candidate wearing revealing clothing, or postings containing misspellings and crude language, he may believe that this information is directly relevant to the candidate’s professionalism and her writing skills. However, this information may not be as relevant, and certainly is not as reliable, as employers think.
"It is human nature to try to find dirt on someone, but generalizing and rushing to judgment about a person’s job qualifications based on her Facebook page is inadvisable," says Dr. Barger. Better alternatives are to contact employment references, to utilize a behaviorally-oriented interview technique, or to employ a consultant or psychologist to administer pre-employment validated testing to determine whether the person is the right fit. Licensed professionals can oversee validated tests measuring physical skills or cognitive abilities to evaluate job qualifications. Employers may complain that in-depth pre-employment investigation and testing is too time-consuming and expensive. However, according to Dr. Barger, if an employer is willing to spend a little extra time and money on the front end, it will pay off down the road. Especially in a mid- to upper-level management role, or a safety-sensitive position, "a poor, or even mediocre, hiring decision based on unreliable data can cost the company a lot of money."
So, resist that temptation to snoop around. Don’t invade an applicant’s privacy or set your company up for a discrimination lawsuit. Allow Facebook to remain within an applicant’s private realm and instead aim to make your employment decisions based on valid, reliable information that is directly relevant to the job. If you can’t resist searching for electronic "dirt" on a candidate, it is better to limit your snooping to publicly available social media and make sure that the information you find only supplements – but does not replace – information gathered from a thoughtful interview process, test results, and reference check.
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