Apr 17, 201212:00 AMForward HR
with Diane Hamilton and Nilesh Patel
In your Facebook: Do employers have the right?
Attorney Nilesh P. Patel is a member of Wisconsin SHRM, which is dedicated to being the state leader in HR management and is a premier source for HR expertise and resources. More information can be found at www.wishrm.org. You can follow the WI SHRM blog at http://wishrm.wordpress.com. Patel can be reached at firstname.lastname@example.org.
On the surface, it’s a relatively low-cost background check. On the other hand, the practice has been criticized as an invasion of privacy by the American Civil Liberties Union and by legislators in Illinois, Maryland, and the U.S. Senate. So should private-sector employers in Wisconsin start engaging in this practice?
The legal side
This is very new ground and there is no clear Wisconsin law or legal precedent that prohibits private-sector employers from asking applicants for access to their Facebook accounts. However, the practice may land an employer in trouble with established employment practices laws and may lead to the creative extension of other laws in order to counteract the practice.
Part of the trouble for employers will be the training and sophistication of the person asking for Facebook access. That person is going to see a lot of personal information, even some that was not obvious in an interview. For example, a Facebook profile could reveal political views or political activities, discussion of health issues, tattoos, marital status, or sexual orientation. Will that interviewer know which of those topics can or cannot be taken into account when making the hiring decision? Will he or she know which of those topics can lead to a discrimination lawsuit?
Asking for access to such personal information can be viewed as quite intrusive, and if the injury to that insult is a job rejection, applicants may be tempted to explore their legal options. There are two existing laws that may lend themselves to a lawsuit against this practice: the federal Electronic Communications Privacy Act (ECPA) and Wisconsin’s Privacy Statute.
The ACLU of Maryland has suggested that given the disparity in leverage between employers and applicants, there’s no real choice or voluntariness when Facebook access is demanded, and therefore, this would be an unauthorized access to stored data under the ECPA. That legal theory appears to be untested in Wisconsin, but that also means it cannot be ruled out as a possible basis for a lawsuit.
Section 995.50 of the Wisconsin Statutes recognizes an invasion of privacy in highly offensive circumstances, where a reasonable person would consider a place private or in a manner that is actionable for trespass. A state court would likely have to decide whether a Facebook account is a “place” that was meant to be protected by this statute, but if it did, then a jury would likely have to determine whether demanding Facebook access is highly offensive to a reasonable person.
In addition, the statute recognizes an invasion of privacy when private facts are unreasonably or recklessly disclosed when there is no legitimate need for the public to know. The unreasonable or reckless disclosure could occur if an interviewer sees private information and then talks about it with others who have no legitimate need to know, such as a spouse, co-workers, or colleagues in other companies.
The employee relations side
The legality of this practice aside, I would caution employers against using it because it is a bad way to start the employment relationship. If applicants have limited general access to their Facebook account, then there is information on there they want kept private. If an applicant faces the Hobson’s choice of providing access to that information or losing the potential job, think about who will readily provide it. Will it be the applicant with other offers or will it be the desperate applicant? Will it be a sophisticated applicant who values his/her right to privacy or will it be the less savvy candidate? In addition, think about whether such a practice will ultimately help the company’s recruiting efforts or hurt them.
A private Facebook account contains information that the individual clearly did not want someone to see. Demanding access to a private Facebook account does not sound too much different or any less offensive than if an interviewer demands access to a personal email account. While the notion of privacy is slowly eroding, it certainly has not disappeared. Though the real costs for this type of practice will be hard to quantify, the likely impact will be a decrease in the quality of the candidates the organization can recruit and a diminished sense of commitment and loyalty from the employees who do join the organization. The better course of action is to train interviewers to screen candidates more carefully and conducting a proper background check of the final candidates.
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