Social media websites, especially Facebook.com, are growing in popularity as a source of information for employers trying to learn about potential new hires. Generally, it is acceptable for an employer to view information on Facebook that a user makes available to the public but other more covert or aggressive tactics have attracted attention. For instance, sending an applicant a “friend” invite under false pretenses when the real objective is to investigate that person has been criticized as an invasion of privacy. More recently, there have been reports that some employers have simply demanded that applicants provide their Facebook user name and password as a condition of being considered for employment. Now: the backlash.
In March, Facebook publicly denounced that practice, stating that it violated Facebook’s terms of service and the privacy rights of its account holders. Facebook even threatened legal action against employers over these practices. In addition, on April 27, 2012, House Democrats introduced the Social Networking Online Protection Act, which would ban employers from demanding a username or password to a social networking account. The proposed law includes a $10,000 civil penalty for violations. As of early May, a similar Senate bill was still being drafted.
Setting aside the bluster of Facebook and Congress, the bigger concern for employers is (or should be) potential exposure to discrimination claims brought by rejected applicants. By examining private Facebook information, hiring managers may unwittingly learn about a candidate’s disability, age, or other protected-class status. It is unlawful to make such inquiries during the application process. Looking at such information opens the door for applicants to claim that their protected-class status was a motivating factor for an adverse employment decision. Since the law in this area is rapidly evolving, consider consulting with legal counsel before instituting a policy that uses social media to learn about applicants.