The issue of prospective employers viewing an applicant’s Facebook account is not new. Employers and privacy advocates have been debating the permissibility of such conduct for years. Employers want to know the character of the applicant before investing in training a person or giving a person access to sensitive data or vulnerable individuals. With Facebook, employers were concerned about discrimination claims. Facebook reveals information that cannot be requested on an application, such as race, religion, parenthood, and in some locations sexual preference. Accessing Facebook could be used to allege a discriminatory intent in the decision not to hire the applicant. Privacy advocates, while objecting to this practice, had to concede that the applicant voluntarily made this information public by posting it on Facebook.
Recent privacy enhancements by Facebook and other social networking sites have caused the conversation to resurface and change. This time however the issue is not just viewing what information might be publicly available, say after a Google search, but also now involves employers asking applicants for their ID and password or asking the applicant to friend someone in the HR department. http://redtape.msnbc.msn.com/_news/2012/03/06/10585353-govt-agencies-colleges-demand-applicants-facebook-passwords
While the same general issues regarding discriminatory intent still apply, requiring access to otherwise private information has modified the discussion. Now privacy advocates have a legitimate basis to complain. As one advocate stated, this practice is like requiring the applicant to give up the key to their house and invite the public inside; a requirement that would be offensive to most people. http://articles.boston.com/2012-03-20/business/31215793_1_social-networking-password-facebook
Indeed the practice may violate Facebook’s Terms of Service, which provide that the user “will not share your password ... let anyone else access your account or do anything else that might jeopardize the security of your account." Maryland and Illinois also have reacted to this recent trend by introducing legislation that would forbid public agencies from making this demand, likely due to free speech concerns.
The issue however is not just of free speech but also protection of the public. What if the only way to detect whether an applicant for a law enforcement position was a gang member was using Facebook? What if the Facebook photos demonstrate that a child welfare service applicant is a possible pedophile? Having assisted consumer reporting agencies in developing background screening products, it is easy to say that gaining access to Facebook could eliminate issues that are otherwise presented in the screening process.
But what about private companies? In reality, not many companies openly use Facebook to screen an applicant. As discussed above, employers are concerned that Facebook will provide access to information relating to the protected status of the applicant and even though the applicant was not offered the job because of lack of qualifications, the Facebook access will be used as evidence of discriminatory intent. But putting aside this discrimination issue, why should employers not know the details about the person they are hiring? Is it not better for everyone involved to know whether they can get along? Whether the employee has an alcohol or drug problem? Has behavioral tendencies that could jeopardize the company or its customers? In good economic times, the answers to these questions would be easier. In today’s environment, the debate is likely to continue and likely to the advantage of privacy advocates.
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Ron Raether |