Posted in: Employment law, In this week's e-newsletter, Latest News and Views, Management, Recruiting, Technology
We’re experiencing a steady barrage of Facebook news and advice, from a range of sources. While there’s no clear consensus on what employers can and can’t do, there are clearer indicators to help guide HR pros making those decisions.
The issue of Facebook password privacy is destined to reach the U.S. Supreme Court, some insiders say.
You don’t have the luxury of waiting for that.
In the meantime, there’ll continue to be challenges.
A recent case out of Virginia upheld a sheriff’s decision to fire six employees who hit the “Like” button on his election opponent’s Facebook page.
Sounds harsh. But the court explained that merely expressing a “Like” doesn’t rise to the level of speech worthy of Constitutional — First Amendment — protection.
The sheriff won the election and explained the firings as part of a cost-cutting move.
Yet, other judges have ruled that “actual statements” on Facebook pages are constitutionally protected speech.
OK, so there’s a lot of back and forth.
What’s your best bet?
- legal and will continue to legally protect your company
- in the best interest of your company, and
- going to help decision-making in the hiring (or not hiring) process.
Try the ‘old-fashioned way’
One way to avoid legal problems is to search for background information on job candidates sticking with the “old-fashioned way” — scouring the Internet, asking for recommendations and good interviewing techniques.
It might be best to hold out on pressuring job applicants for Facebook passwords or other access until there’s more legislative and legal guidance. Several states are in the process of coming up with their own Internet privacy laws concerning employment.
Now, legislation that would establish the Social Networking Online Protection Act (SNOPA) has been introduced in the U.S. House.
Proponents of asking job applicants for Facebook passwords say it helps reduce security risks. There’s a lot that can be learned.
That’s a double-edged sword: If you hire this person and they’re later part of some scandalous or illegal activity, your company could be held liable for enabling the employee or not screening effectively.
Also, asking for access to that information opens companies to potential bias problems.
If someone’s Facebook page includes personal information about religion or a disability, for instance, that could come back to haunt you if you choose not to hire the person, or they allege discriminatory treatment after you do hire them.
Finally, the American Civil Liberties Union has added its two cents to the discussion.
The group is urging Congress to pass legislation that would ban employers from:
- accessing password-protected accounts or devices
- requiring anyone — employees and applicants — to provide private information such as Facebook passwords
- pressuring employees to provide alternate access, like requiring them to become a “Friend” on Facebook or similar request, and/or
- discharging or refusing to hire anyone who refuses to provide access to private materials or web sites.