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On Monday, August 13, 2012 by W. Mark Bennett posted in Noncompete Blog
It used to be the biggest concern an applicant might have during an interview was a gap in employment, a neutral reference, or the less than applicable major that sounded great when the counselor said, “well, you have to choose something!” Today, an applicant’s Timeline could be the difference between getting a job as well as continued unemployment.

Our society has grown obsessed with “checking in” to inform the world of where they are, what they are doing, who they are doing it with, posting pictures of them doing it, and insisting on a permanent digital record of these events. The nightstand diary under lock and key is now a digital billboard of who, what, when, where, how, and why. But without getting into the social aspects of this shift, the impact it is having on employment opportunities and “background” checks can’t be understated.

Prior to technological shift, an applicant would never be asked about the frat party photo with the bong in the background from twelve years ago, or to explain why they “like” a certain group or organization. Yet, with an ever increasing number of employers, both government and private, making access to the candidate’s social media profiles an application prerequisite, these, and a litany of other similar questions, are becoming routine in job interviews.

ILLINOIS JOINS MARYLAND

Last week Illinois became the second state to enact a law banning employers from requesting passwords for Facebook and other social media accounts from employees and job applicants. In April, Maryland became the first state to pass such a law, and as of late July, at least a dozen other states were considering similar legislation according to the National Conference of State Legislatures.

Interestingly, giving someone your Facebook login information is a violation of the site’s terms of service, and according to the Associated Press (AP), the Department of Justice considers it a federal crime to enter social media sites in violation of their terms of service; although the AP also noted that recent congressional testimony indicates that such violations would not be prosecuted.

FEDERAL LEGISLATION

The federal government attempted to address the issue, but the House of Representatives rejected an effort to give the Federal Communications Commission the power to stop employers from asking job applicants for their password to Facebook and other social networking sites. The amendment would have added the following paragraph to the Federal Communications Commission Process Reform Act of 2012:

“Nothing in this Act or any amendment made by this Act shall be construed to limit or restrict the ability of the Federal Communications Commission to adopt a rule or to amend an existing rule to protect online privacy, including requirements in such rule that prohibit licensees or regulated entities from mandating that job applicants or employees disclose confidential passwords to social networking websites.”

So, while the federal government continues to contemplate, negotiate, and ponder national legislation to address the issue, employers, especially national employers, are burdened with complying with an ever increasing number of state laws that are addressing the issue.

BEST PRACTICES

The best advice we can give to employers is don’t ask for the information. Why you may ask? Viewing workers' profiles could give employers access to all kinds of information about characteristics that are protected by federal law, such as disability, national origin, marital or family status, or religion. The problem for most employers that view this as a new tool for screening is you don’t know what you’ll find until you look, and once you’ve looked you can’t unlearn what you now know. Whether the information is ever considered by the employer is of little consequence, because the knowledge of the information is enough to cause trouble for the employer.

Even having access to social media information but not actually looking at it could create issues for an employer. If an employer does not consistently apply its policy of accessing social media profiles it could be opening itself up to additional potential liabilities related to workplace harassment, discrimination, workplace violence, dissemination of confidential information, or other “preventable” claims.

In short, the risks far outweigh the benefits, and the easiest, safest, and best approach is for employers considering a new hiring intake practice of requesting social media login information from applicants is to adopt the same policy 99.99% of employers already have for drugs, “Just Say No!
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