Employers that recently began requiring login credentials for a job candidate’s social media profile has created a firestorm around privacy concerns and the use of social media for pre-employment screening. While these cases bring the use of social media for background screening under the spotlight, studies indicate that a vast majority of organizations do not use social media as part of their screening program.
According to the 2011 HireRight Employment Screening Benchmarking Report, only 11 percent of employers include social media as part of their pre-employment screening program, and evidence is scant that many of those are requiring passwords. Nonetheless, it is critical that employers understand the perils of not only using social networking sites for background screening, but also the practice of requiring access to a job applicant’s private accounts.
The ACLU has weighed in on the issue of requiring job candidates to either provide log-in credentials, “friend” the HR manager or log-in to their account during an interview, calling it an invasion of privacy.
In addition, the EEOC has also stated that they are watching the matter “very closely” and that the topic is being “elevating within the organization,” but the EEOC has not yet provided any guidance.
Increased Exposure to Risk
Employers that search social media profiles could be exposed to personal information (such as race, age, religion, etc.) that is considered a protected class under federal law. In addition, the information that is gleaned from a social media profile could be misinterpreted.
Asking for passwords as a condition of employment is another concern. U.S. Senators Charles Schumer and Richard Blumenthal have asked the Department of Justice to investigate whether asking for login credentials violates federal law, specifically, the Stored Communications Act (SCA) and Computer Fraud and Abuse Act (CFAA).
A potential signal of the courts view could be found in a recent court decision involving employees who were asked to provide login information to their supervisors. The ruling found that employers violated the SCA by accessing the social networking site without authorization since the employees felt coerced into providing their passwords.
Poor Candidate Experience
A positive employment screening experience is an integral part of an overall positive candidate experience, and reflects on a company’s brand. In addition, job applicants are put in an awkward position of violating the terms of service of Facebook if the applicant is required to share login information. Also, employers could lose out on top talent as they will choose not to provide access and go elsewhere.
Damage to Employee Brand
Companies requiring access to personal profiles could experience strong public backlash which would damage the employer’s brand image.
Pending State Legislation
Several states including California, Illinios, Maryland and New Jersey have pending legislation against employers requiring access to private social media accounts as a condition of employment.
Potential Federal Legislation
Several U.S. senators have drafted legislation that they say would plug any holes in existing law that would allow employers to require access to social media accounts. However, the most recent bill, which says that employers cannot demand that somebody reveal a password to any social media account as a condition of employment, is in limbo.
Potential Litigation from Job Applicants
Job applicants may feel coerced or required to provide social media information. This could expose employers to potential liability concerns in the future.
Facebook Weighs In
While the use of social media for recruitment is a widely used practice, its use as a tool for background screening remains a risk, especially for those companies that request passwords to social sites.
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The HireRight Blog is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization's compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.
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