Should employers be allowed to ask job applicants for the logins and passwords to their social network site profiles such as Facebook as part of employment background checks? The answer to this question may involve the next frontier of online privacy, suggests the American Civil Liberties Union (ACLU), after the Maryland Department of Corrections (DOC) asked a job candidate for his Facebook login information as part of a background check.
In response, the ACLU of Maryland sent a letter to the Maryland DOC questioning its blanket requirement that job applicants and current employees undergoing recertification provide “social media account usernames and personal passwords for use in employee background checks” and calling the request for social media access a “frightening and illegal invasion of privacy” that shows how little attention is paid to online privacy.
The letter from the ACLU of Maryland also details the personal experience of the Maryland man, a Corrections Supply Officer and a veteran of the department, who spoke out about the new policy requiring social media logins for background checks after applying for a new position. As discussed in the letter, the ACLU of Maryland believes:
Login information gives the DOC access to communications that are intended to be private, such as personal email messages and wall postings viewable only by those selected individuals who have been granted access. For social media users who maintain private accounts, the DOC demand for login information is equivalent to demands that they produce all of their private correspondence and photographs for review, or permit the government to listen in on their personal telephone calls, as a condition of employment. Such demands would be unconscionable, and there is no basis for treating electronic communications differently. While employers may permissibly incorporate some limited review of public internet postings into their background investigation procedures, review of password-protected materials overrides the privacy protections users have erected and thus violates their reasonable expectations of privacy in these communications.
This issue over how much – or how little – information from social media sites should be available to employers for background checks is controversial. The ACLU of Maryland letter also referenced the outraged public reaction when the City of Bozeman, Montana attempted to implement a social network background check policy in 2009, a policy the city dropped due to negative reaction.
More recently, employers are increasingly facing questions about their policies regarding social media usage that outlines what is, and what is not, appropriate after several highly publicized cases of employees being fired over alleged social media infractions as more workers access popular social networking sites such as Facebook and Twitter.
Employers would be wise to proceed with caution when it comes to checking the social media sites of job applicants, since they may open themselves up to discrimination claims if the social network site reveals a job applicant’s membership in a protected group such as race, nationality, ethnicity, religious afflation, marital status, and physical condition.
Employers should avoid any inferences that social network sites were used illegally to screen out candidates on the basis of their membership in a protected class by waiting until later in the hiring process so applicants are assured they were considered fairly. Employers should also formulate clear policies and procedures regarding using social media for screening to ensure they are looking for valid predictors of job performance.
For an examination of some of the reasons why the use of social network sites can be dangerous for employers, read the article ‘Caution! – Using Search Engines, MySpace or Facebook for Hiring Decisions May Be Hazardous to Your Business’ by Employment Screening Resources (ESR) President and safe hiring expert Attorney Lester Rosen at: http://www.esrcheck.com/articles/Caution-Using-Search-Engines-MySpace-or-Facebook-for-Hiring-Decisions-May-Be-Hazardous-to-Your-Business.php.
(Update 02/23/2011: The Washington Post reports that the Maryland Department of Corrections has suspended its policy of asking prospective employees to voluntarily divulge their user names and passwords to social media Web sites such as Facebook after the American Civil Liberties Union (ACLU) of Maryland said that the practice breaches the privacy of job applicants.)
Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen and is accredited by The National Association of Professional Background Screeners (NAPBS®) . ESR is also a Designated E-Verify Employer Agent that helps employers maintain I-9 Form compliance and a legal workforce. To learn more about Employment Screening Resources (ESR), visit http://www.ESRcheck.com or email ESR News Editor Thomas Ahearn at tahearn@ESRcheck.com.