What is the role of social media in the hiring process? Are employers entitled to review profiles of their prospective employees? Can employers ask applicants for usernames and passwords so they can gain access and look behind the curtain? Should employers just stay away from social media in the hiring process?
In the United States, there seems to be a developing battle over ownership and privacy rights related to social media pages in the hiring and employment world. Many employers are going beyond checking their applicants’ social media profiles. They are asking applicants for their usernames and passwords during the interview process. In response, Facebook has warned employers that requiring applicants to provide their Facebook passwords is a violation of the terms of service and illegal under U.S. federal law. Some states are proposing legislation to prohibit the practice.
Some individuals and organizations are actively using social networking in their jobs. For example, individuals may be using their Twitter accounts to market products for the company. As a result, there have been a number of lawsuits in the U.S. raising issues regarding ownership and access to the employee’s social media account (see Maremount v. Susan Fredman Design Group and Phonedog v. Kravitz). If the employer is expecting the employee to use their personal Twitter account to market the company’s product, is the company wrong to ask for access to the account in advance so it knows what it is getting?
Workplace expectations and the law continue to evolve regarding these issues. In considering their options, employers ought to account for the following:
- Over-collection leading to perceived discrimination: Information in a social media profile will probably include information on which an employer is prohibited from considering as a factor in employment decisions. The inadvertent collection of race, religion, origin, family status, and disability information may easily lead to a human rights claim.
- Complaint to the Privacy Commissioner. As previously reported, a number of Privacy Commissioners have issued social media background check guidelines. Failure to demonstrate diligence and compliance with the guidelines in collecting information from an employee may result in action by a Privacy Commissioner.
- Employee relationships and morale: Employers should consider the ramifications on its relationships and the culture of the workplace in determining its approach to social media issues.