During the past few years more and more employers are using social media sites like Facebook, Twitter, My Space and LinkedIn to vet prospective candidates for positions in their organizations. According to an article in the Social Media Examiner there are now more than 800 million active Facebook users, with over 200 million added in 2011. There are over 300 million Twitter accounts and over 80% of Americans use a social media network.
In another survey taken by DLA Piper a global law firm, “For Employee’s that us Social Media for Personal use”; 39% had “friended” a colleague or business contact on Facebook or LinkedIn; 14% had posted a status update or “tweeted” about their work; 22% had posted a status update or “tweeted” about a colleague; 28% had posted photo’s of colleagues and business activities and 1% had disclosed confidential business information.
In that same DLA Piper survey, research found that 21% of employers had taken disciplinary action because of information an employee had posted about a co-worker; 25% had taken disciplinary action because of information an employee has posted about workplace business activities; 31% had taken disciplinary action because of information an employee had posted about the organization and finally 30% had taken disciplinary action because of the level or amount of social media used by the employee on work time. The survey also found some disturbing information, only 14% of U.S. companies reported having a written social media policy that regulated the us of social media inside and outside the workplace; which can also be interpreted as 86% of companies are taking disciplinary actions on employees without a clearly written HR policy, clearly creating a liability for the organization.
In one recent employer action, (Rayburn, 2012) New Journal in Delaware rescinded an offer to reporter Khristopher J. Brooks after he announced his new position with the journal via a mock press release on his “Tumblr” account.
Did the newspaper overreact to what was a candidate’s excitement of his new appointment with the News Journal? Should this have only merited a reprimand and request for it to be taken down? Did the Journal act fairly in taking back their offer of employment and did they communicate their expectations and policies to the candidates during the interview process?
This is certainly a grey area in the recruitment process, and clearly spells out the need for a comprehensive and clearly written policy on the use of social media in the hiring procedures. It also points out the apparent lack of awareness, understanding, uniformity and consensus on the subject of social media protocols in the recruitment and hiring practice for both the candidates and the employers.
According to Career Builder (Forty-five percent, 2009), “Last year alone, two percent of employers said in their 2009 survey that polled managers and human resource personnel that they terminated workers for content posted on these social media sites, and one percent of workers were terminated due to videos they posted on media sharing sites like “YOUTUBE”.
An employee’s problems regarding the discovery of embarrassing or questionable material on social media sites are many and well-publicized, but the employers are also on dangerous ground when seeking to vet possible applicants using today’s social media networks; employers do not have immunity from the law when they rummage through Facebook, LinkedIn, Twitter, E-Mails, Blogs and Web-pages of the applicants. In fact, the likelihood that an employer may run afoul of anti-discrimination and privacy laws when they take a peek at photo’s or tweets or recent blog posts is troubling at best and creates substantial financial liability at its worse.
According to G L. Dayton Esq., (G.L.Dayton, personal communication, May 20, 2012), “My first apprehension when it comes t employers pulling up Facebook accounts, Twitter feeds, E-Mails and personal Blogs is for the prospective employees’ privacy. Intrusion upon a party’s seclusion or solitude is a tort, and such a cause of action might arise in the instance of an employer looking around online and digging up information on a prospective candidate.” Dayton adds, “The employer may argue that the employee has “NO” expectation of privacy for material posted online, but the violation of privacy is certainly an issue the employer needs to be aware of when developing a social media policy for their organization.”
In the past couple of years employers have begun the practice of asking prospective candidates for their Facebook sign-in passwords and some employers are even asking for E-Mail passwords. “This practice undermines the privacy expectations and the security of both the user and the user’s friends,” wrote Erin Egan, Facebook’s Chief Privacy Officer on the company’s privacy blog. “It also potentially exposes the employer who seeks this access to unanticipated legal liability.”
An employer’s investigation of potential candidates’ social network sites may provide the basis for claims under employment discrimination statutes. Several examples come to mind; one of the first things employers look for upon successfully locating a prospective candidates’ Facebook page is pictures. Facebook allows users to upload a large amount of pictures and arrange them into albums. From these pictures, as well as the default “Profile Picture” that is displayed with every user’s name (unless privacy settings are modified) and on every user’s main page, an applicant’s race or ethnicity is immediately apparent. Facebook also has an information input field for religious affiliation, and many users include that as part of their profile. As the employer combs through the pictures he might see a prospective candidate at the Gay Pride Festival, holding up an Obama/Biden 2012 poster, a Catholic Baptism, a racially mixed couple, Bat Mitzha or a 50th Birthday Party. Disqualifying a candidate for any of these pictures would be considered discriminatory and increase the liability of the organization. That may comfort the user’s of Facebook, but proving discrimination is difficult at best and there is no Federal Legislation that protect online privacy.
With employers pushing the boundaries in technology, these action potentially create new pressures and questions for job seekers. Ethical questions are posed of employers requesting a job applicant’s private, social media passwords and log-ins to check a candidates background. “In order to prevail on the facts, an employee must allege an intentional intrusion (physical or otherwise) on his or her solitude or seclusion, private affairs or concerns, which would be highly offensive to the reasonably prudent person” says Dayton.
One could argue that asking for a “private” password to your social media page or E-mail password would be highly offensive and intrusive to the reasonably prudent person.
In the opening pages to President Barack Obama’s “Consumer Privacy Bill of Rights” the President says, “”Americans have always cherished our privacy. From the birth of our republic, we assured ourselves protection against unlawful intrusion into our homes and our personal papers. At the same time, we set up a postal system to enable citizens all over the new nation to engage in commerce and political discourse. Soon after, Congress made it a crime to invade the privacy of the mails. And later we extended privacy protections to new modes of communications such as the telephone, the computer, and eventually email.”
According to the California Constitution, article 1, section 1; All people are by nature free, independent and have inalienable rights. Among these are enjoying and defending life and liberty; acquiring, possessing, and protecting property; pursuing and obtaining safety, happiness and “PRIVACY’
The current conversation regarding the privacy of the American Citizen goes far beyond “NATIONAL SECURITY” concerns, but is crucial and has an impact on the everyday lives of the American Citizen and to the liability and workings of American business…It is a conversation Americans must take seriously and not just passively disregard…If for any other reason it could affect your livelihood.