Recently, there has been “much ado” over some employers seeking Facebook password and login information from job applicants. While this practice just recently caught the media’s attention, the reality is employers have been using social media to investigate job applicants for years. For example, in 2011, Reppler, a social media monitoring service, conducted a survey of 300 hiring professionals to learn if, when, and how they are using social media to screen job applicants. Specifically, according to the survey, 91% of the recruiters and hiring managers stated they have used social networking sites to screen prospective employees. And, 69% of these recruiters and hiring managers revealed that they have denied employment to job applicants due to something they found on an applicant’s social networking site.
Employers, however, should be cautious when using information obtained from social media to make hiring decisions. Though technology has outpaced the law in this area, employers should be sure that the information they receive does not lead them to liability under the Fair Credit Reporting Act (FCRA), or under various state and federal employment discrimination laws.
Complying With The FCRA: Under the FCRA, employers must provide to job applicants (and employees) a disclosure that a consumer report/background check will be performed, and the employer should obtain the individual’s authorization to proceed with the check. Furthermore, the employer must provide notice to the individual if it will take adverse action (not hire the individual, for example), before the employer takes that action. The FCRA also requires an employer to provide a post-adverse action notice as well.
Importantly, the FCRA requirements do not apply to employers who perform their own background checks without using a consumer-reporting agency to obtain the information. Thus, for example, if the employer’s own human resources personnel, or if the hiring manager, performs social media research on a job applicant, the FCRA does not apply to those actions. And, of course, there are smartphone applications for this type of research. The FTC warned a few of the companies providing these smartphone applications, but the FTC has not yet determined that an employer’s use of these smartphone applications are subject to the FCRA.
Consequently, employers should be sure to understand the requirements and procedures of the FCRA, and consult an employment attorney. Employers should also be sure to monitor the “apps” they are using to learn whether the FTC has opined about a certain smartphone application. Simply, as the law evolves, so must employer behavior.
Watch Out For Discrimination Claims: Employers must also pay close attention to privacy and anti-discrimination laws. For years, employers have been counseled to not invade employee privacy, to not base any employment decisions on protected characteristics, and to avoid unlawful questions during the hiring process. Now, with so many employers conducting pre-employment research on a job applicant’s social profile, employers are opening themselves up to discrimination claims under federal, state, and even local laws.
By reviewing social networking profiles and information, employers are learning about job applicants’ religious beliefs, marital status, family relationships, race, ethnicity, medical conditions, and other information that cannot be used to make an employment-based decision — information that is considered “taboo.” As a result, employers must take care when performing such research. Ultimately, should a discrimination claim arise, the employer will have the burden of proof to demonstrate that the decision to reject a job applicant was based on a legitimate non-discriminatory reason, rather than the fact that the employer learned of the job applicant’s sexual orientation, the projected due date of the job applicant’s baby, or any other protected characteristic.
One practical method is to only allow someone who is not involved in the hiring of the specific position to be the person who conducts the social media background check. Then, when the social media background check is completed, that person can summarize the job-related information that may be helpful in considering the applicant, and can make no mention of the “protected” information (race, religion, medical condition, etc.) that would otherwise get the employer into trouble. This way, the hiring manager, or ultimate decision-maker, receives only the job-related information, and can demonstrate that the information unknown to him or her had nothing to do with the decision to hire another candidate.
Furthermore, before the job opening is even posted, employers should be clear about what they are really looking for in a social media background check, and whether it is necessary for the particular position. For example, the importance and extent of a social media background may depend on the position the company needs to fill (for example, a CFO position versus a seasonal stockroom employee). Certainly, employers should doing enough pre-hiring due diligence to avoid potential claims of negligent hiring, but they must balance those concerns with finding out information that exposes them to liability for discrimination.
About Those Requests For Login/Password Information: As recently reported, some employers have gone much further than just simple web surfing to research job candidates. Some have started to ask job applicants to provide the company with their Facebook username and password, and/or to require applicants to login to their Facebook accounts during an in-person interview.
In response to the spotlight on these news reports, Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) have requested the Department of Justice (DOJ) to determine if these employer requests violate the federal Stored Communications Act (SCA) or the Computer Fraud and Abuse Act (CFAA). Generally, the SCA, 18 U.S.C. § 2701, prohibits intentional access to electronic information without authorization or intentionally exceeding that authorization, and the CFAA, 18 U.S.C. § 1030(a)(2)(C), prohibits intentional access to a computer to obtain information without authorization. They also asked the Equal Employment Opportunity Commission (EEOC) to determine whether employers who request login/password information are violating anti-discrimination statutes.
State legislators, including those in California, Illinois, Maryland and New Jersey, have also jumped on the bandwagon and have introduced legislation that aims to prohibit this practice. For example, in California, on March 27, 2012 Senator Leland Yee, D-San Francisco, introduced the “Social Media Privacy Act” (SB 1349) to the legislature. Senator Yee’s proposal would add new sections to the California Labor Code and Education Code prohibiting private and public colleges, universities, and employers from “requiring, or formally requesting in writing, a student or an employee, or a prospective student or employee, to disclose the user name or account password for a personal social media account, or to otherwise provide the institution or employer with access to any content of that account.” While this piece of legislation is a bit too simple, and will likely need to be refined, the law is attempting to catch up with technology in this area.
In general, employers should think twice, and consult an employment attorney, before establishing a practice of requiring employees and applicants to turn over login information. And, though the law is evolving in this specific area, employers should understand that such a practice might have many “non-legal” ramifications, like, the company losing talented employees and/or potential employees who refuse to give access to social media login credentials. Furthermore, such policies may lead to lower employee morale and distrust, and other issues that will be explored in future posts concerning social media and employment law.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.