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Friday, April 6, 2012

Much more than a friend request - Chicago Tribune

facebook - Google News
Google News
Much more than a friend request - Chicago Tribune
Apr 7th 2012, 05:48

Picture yourself in the interview for the job of your dreams: You're sporting a fabulous new suit, you're nailing every question, and you've developed a rapport with your prospective boss.

As the interview draws to a close, he appears ready to invite you back for a second round. Then he offers one last question: "Would you provide me your Facebook password so we can access the content in your profile?" The intent of the question is clear: This prospective employer wants to scour social media sites for any content that might effectively screen you out for employment.

Over the past few weeks, news outlets across the country as well as Facebook itself have reported that employers are increasingly seeking access to individuals' Facebook accounts to find out more about candidates. The outrage has been so intense and visceral, it's as if Bears fans just learned Mike Ditka had agreed to coach the Green Bay Packers.

At this early juncture, there are no good data indicating how many employers are engaging in this practice. I would venture to guess it's a mere handful. Nevertheless, late last month several U.S. senators called for Attorney General Eric Holder and the Equal Employment Opportunity Commission to investigate the legality of this practice. Even local legislators have joined in: State Rep. La Shawn Ford, D-Chicago, recently introduced a bill in the Illinois General Assembly that would make it unlawful for an employer to ask a current or prospective employee to provide login information to their social media accounts or profiles. The bill would allow job seekers to sue if asked for such access.

To some extent, this practice should not surprise us. In the past few years it has become increasingly common for employers to review public social media profiles to learn more about job candidates. Some surveys put the number of employers doing so at more than 50 percent. So, as candidates have increasingly set their Facebook and other social media profiles to private, some employers are taking the next step, seeking direct access to them.

Facebook insists that employers should not ask for candidates' passwords because it's not the "right thing to do." As one who represents employers exclusively, I am one of the last to advocate for restrictions on employers' rights. However, beyond this question of "right or wrong," requesting passwords to social media accounts and profiles is not good business for a host of reasons:

• It could expose the employer to discrimination claims. A fundamental best practice for employers when gathering information about prospective employees is to make sure that any inquiry is "job-related." When employers access a candidate's social media account, they lose control of the information presented and almost surely collect a lot of information that is not job-related and should never be considered in an employment decision.

Put another way, an employer would never require a candidate to submit a resume with a photo or ask about the candidate's race, age, religion or sexual orientation. Yet all of this information is potentially available through social media. Once an employer knows this, how does the employer unlearn it?

• Employers also can be exposed to privacy claims. Social media effectively is the water cooler of the tech-savvy workplace; it's the busy intersection where employees gather to share deeply personal commentary and voice their complaints. Today's Facebook is like yesterday's snail mail; it's how a growing number of us communicate. Just as a prospective candidate wouldn't want an employer rummaging through his or her mail, it seems equally unseemly to allow the employer in the candidate's social media account or profile.

New legislative initiatives aside, employers accessing social media could be violating existing anti-eavesdropping and privacy laws, depending on the state.

• Most employers are not prepared to handle this private information. Nearly all those requesting these passwords are not staffed to do so. And if the employer misses clear signs that the applicant may engage in conduct harmful to others, will the employer face liability for so-called negligent hiring?

After the employer is finished with the password, what does it do with it? Throw it out? Store it in the human resources department? In addition, the employer may have some responsibility for preventing the disclosure of this password to third parties.

• Employer = Big Brother. Put aside the legal issues. When you ask for a prospective employee's password, it sends several messages that may seriously undermine your business goals. For one, it suggests that you lag in your knowledge and acceptance of social media. More important, it provides a glimpse of the Big Brother to come. It's as if you're telling a prospective employee: If I am asking for your passwords now, just wait until you start working for me. Also, applicants who readily submit their passwords will assume that spying on fellow employees will be rewarded.

Requiring Facebook passwords is not good business. It's also not likely to reap meaningful benefits. It will take only seconds for an applicant to scrub their media posts after providing their passwords, thereby eliminating any benefit of asking. So why do it?

Jeff Nowak is a partner and co-chair of Franczek Radelet's labor and employment practice group, representing employers in all aspects of labor and employment law.

Outside Opinion is a forum for local business executives, economists, analysts and academics to discuss their take on the business topics of the day. Send submissions, suggestions, questions or comments to businessvoices@tribune.com

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