More Reasons Not to Spy on Potential Hires

More Reasons Not to Spy on Potential Hires

Photograph by Danny Israel/Photonica/Getty Images

Recent accounts of prospective employees forced to divulge their social media passwords in job interviews have lawmakers and privacy advocates buzzing. State legislators in California and elsewhere are introducing legislation to ban the practice, and federal legislation is being discussed as well.

But how widespread is this policy—and should small business owners rely on it in their own hiring?

Scott J. Witlin, a labor and employment partner in law firm Barnes & Thornburg’s Los Angeles office, doubts many employers are asking candidates for passwords to Facebook or other social media sites. While a handful of government and institutional employers have been documented doing so, he says, private industry is not joining up.

“I think this is a crisis du jour and completely overblown,” Witlin says. He queried his firm’s 70 labor attorneys in five states and found none whose clients were strong-arming job candidates into revealing their social media authentication. “It’s just common sense. Most employers wouldn’t ask applicants if they could go through their e-mails, and this is pretty much the same thing,” he says.

Yet with the insight into an applicant’s character that a Facebook or Google+ account might provide, he admits the idea may be tempting, particularly to small employers who don’t have human resource departments or budgets for independent background checks.

Meredith Campbell, an attorney in the employment and labor law group at Shulman Rogers in Potomac, Md., says her clients typically run basic Internet searches on prospective job candidates. “A lot of employers are including Google searches as part of their standard criteria. They’re looking to see if an employee will fit into the company culture, and they’re looking at an individual’s judgment. If you see a lot of Twitter or Facebook postings that don’t sound like someone thought it through before they put it up for the world to see, that’s a reflection on their judgment and might be a concern,” she says.

If an individual’s social media site is open to the public, it’s obviously available to a potential employer as well. And some social networking sites, such as LinkedIn, are geared specifically toward professional development and job seeking. But, Campbell says, even looking at a public site could open a small business owner up to a claim of hiring discrimination.

That’s because many sites reveal a great deal of personal information that employers are not legally allowed to consider when making hiring decisions: “Religion, age, disabilities—these are all things that make you vulnerable to a discrimination claim even if you’ve made a decision not to hire someone for perfectly valid reasons,” she says.

Asking for access to a personal site is definitely not a good idea for small business owners—or any employers, for that matter, says Catherine M. Pearson, an attorney with Bryan Cave in Phoenix. “Employers asking applicants to share Facebook user names and passwords is the equivalent of asking someone to turn over her diary and all her photo albums,” Pearson writes in an e-mail. “Even worse, once the applicant’s Facebook account is accessed by the potential employer, the employer can then see the Facebook pages of the applicant’s friends. So your potential employer is essentially asking you to turn over all of your best friends’ information, too.”

Small business owners who put time and resources into a new hire who can’t do the job—or bring an employee on board who winds up stealing or calling in sick constantly—sometimes overreact with the next batch of candidates, Campbell says. But rather than subjecting their businesses to liability, they should stick to traditional reference and background checks and always give reasonable notice to applicants about their hiring practices.

“You have to provide notice to the prospective employee about what kind of background check or drug testing your company will do,” she says. Small business owners who do not have in-house human resource employees can find extensive resources on the website of the U.S. Department of Labor. While many federal regulations do not apply to the smallest companies, state laws may be applicable across the board, Campbell says, so business owners should assume hiring laws apply to them.

The most important cautionary tale here is actually for individuals, whether they are self-employed, small business owners, or job seekers, says Eric Yaverbaum, associate publisher of FB & Business magazine. Public or private, discretion is more important than ever. “If you want to put yourself out there publicly, you should expect an employer to see that—end of story,” Yaverbaum says. Although he is appalled that any employer would ask for a Facebook password, which he compared with asking for keys to an apartment, it’s also true that potential partners, employees, and investors check out companies and individuals online. “The way people are vetted and checked out is very different today,” he says.

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