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Apr 10, 2012

By William A. Nolan

Let’s get two easy points out of the way.

First of all, we all agree – few employers are asking applicants for their Facebook or other social media passwords. The issue has been hugely overblown in recent weeks. Slow news cycle.

Second, if you think you might like to ask applicants for their passwords, do not start now. If you are already doing it, stop. Immediately. After the last few weeks, demanding passwords of applicants is akin to stealing a puppy from Santa Claus.

This point you might not find so easy: The idea of asking applicants for their social media passwords is not ridiculous. Collectively, we just have not figured out yet how to do it right yet.

3 statements to consider

Work with me here. First, do you disagree with any of the following three statements?

  1. The more job-related information the employer has about the employee prior to making a hiring decision, the more successful the employment relationship is likely to be.
  2. How a worker puts widgets together is only part of the hiring equation. Equally important is the worker’s ability to function as a successful part of a team. It matters what kind of person you are. That is often trickier to measure than hands-on job skills but it is possible, for example, to administer properly validated personality tests in the hiring process.
  3. What you do on social media says something about what kind of person you are. It may say lots of other things that we all agree have nothing to do with your ability to do your job, but can we really dispute that information on social media will say something about what kind of employee you will be?

Some risks that deserve a careful look

One response to statement No. 3 above might be to agree but to say, “the benefits are outweighed by the risks.” But let’s look carefully at some of the risks that have been identified.

  • Accessing social media may cause an employer to violate discrimination laws. If you access somebody’s social media accounts, you may obtain information that is not properly considered as part of the hiring process, such as the applicant’s religion, their age, or their family status. Of course, this has always been true with any kind of hiring-related information gathering. Accordingly, most employers have modified their employment applications to avoid questions that may elicit such information.

We just need to figure out the social media version of weeding non-job-related questions out of the employment application. What if the employer creates job-related questions and has an employee assigned to answer those questions based on a review of applicants’ social media accounts? The employee is specifically instructed not to provide certain kinds of information – the information any employment lawyer would immediately tell you should not be in your employment applications. Some employers are doing some like this already with the review of publicly available social media information.

  • It may violate the federal Stored Communications Act. The SCA prohibits unauthorized access of an electronic facility so as to obtain access to an electronic communication that while it is in electronic storage. But the SCA expressly excepts conduct that is authorized by the person who makes or is the intended recipient of the communications. Employers have been using this “consent exception” for almost two decades in their technology use policies – if you want to work here, sign this policy that gives me the right to monitor your technology use.
Attorney William A. Nolan
Attorney William A. Nolan

Think it’s not consent if the employer requires access? If employers cannot compel applicants and employees to consent to things they do not like as a condition of employment, then we will need to rethink noncompete agreements, drug testing, and really any kind of background checking whatsoever. Certainly applicants cannot be forced to consent to things that are otherwise illegal, so for example you would not demand consent to information beyond what you have determined you can properly review. But the SCA standing alone should not render illegal the review of applicants’ social media information.

  • It violates terms of service. Facebook has taken a strong stand – it will protect its users’ privacy and any attempt to force users to disclose passwords will be considered a violation of Facebook’s terms of service and will be dealt with accordingly. Of course, Facebook has the right to set whatever terms of service it likes, and the stand it has taken is the right one for it to take from a business standpoint.

But it is one thing to say I cannot get on a social media site unless I consent to its terms of service. What if I, as an employer, say that I will hire only those applicants who will sit down at my desk and log into their Facebook account and look over their shoulder? Or that I just will not hire people whose privacy settings block my access to their social media information, or who will not “friend” or link to me? (I don’t need passwords under either of those scenarios.)

What is a social media provider going to do about that? Somewhere there is a limit on providers’ ability to selectively manage this vast universe of often widely shared information.

Employers CAN ask for job-related information

Here is why some form of compelled social media access can work: We have a well developed consensus in this country about what employers can and cannot ask in the hiring process. That consensus is built around job-relatedness.

Employers are entitled to job-related information about applicants and employees, and not entitled to non-job-related information. While there are few laws that expressly say an employer cannot access non-job-related information (the Americans with Disabilities Act is a notable exception), to do so puts the employer at risk of discrimination liability when it relies on information that is not job-related and might be seen as having a disparate impact on protected classes.

For example, discrimination enforcement agencies take the position that employers cannot ask about arrests because that information may have a disparate impact on groups protected by Title VII. And employers generally do not have a problem with that rule. Likewise, employers understand reasonably well where the lines are drawn with respect to job-related information in the ADA context. Employment lawyers counsel employers on these kinds of questions, but rarely do we find ourselves litigating these issues.

I submit that, if everybody calms down, the job-relatedness consensus can be applied to applicant information on social media. Legislators who are rushing to ban the consideration of social media are doing a disservice to employers, to good employees who are entitled to work with colleagues of a certain quality and, in extreme situations, to the public by depriving employers of job-related information about applicants.

What all stakeholders should be doing is sitting down to a reasoned dialogue about how we apply the stable consensus about what employers can ask in the hiring process to a high tech, social media world. Employers, you know there is job-related information out there on the internet. Don’t be afraid to ride out the current storm, then set about figuring out how to go get it.

This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

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