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A Job At What Cost? When Employers Log In To Dig In

Filed by KOSU News in US News.
March 21, 2012

How would you feel if a prospective employer asked for your username and password to see your Facebook profile during an interview? Robert Collins says he felt “violated.”

“I felt disrespected. I felt that my privacy was invaded,” he tells All Things Considered host Robert Siegel, “but not only my privacy, the privacy of my friends and that of my family that didn’t ask for that.”

Collins was applying for a job with a prior employer, the Maryland Department of Corrections, after a leave of absence. He let his interviewer log in and search his profile with the screen facing away from him. The justification? The department says it’s concerned about gang affiliation and gang infiltration in its facilities.

“I can appreciate their need to create a secure facility, but not at the cost of invading privacy,” Collins says.

The Legislative Battle

He got the job, but has since left to attend nursing school. He also took his complaint to the American Civil Liberties Union. The state suspended its old practice and then changed its policy following the original complaint. Now, providing the username and password is not mandatory, but the ACLU says that doesn’t go far enough.

“We don’t really feel that that’s an adequate solution,” says Melissa Goemann, the ACLU’s legislative director in Maryland.

Now, Collins and the ACLU in Maryland are working with state legislators to pass a bill that would prevent employers from even requesting such information. The bill passed the state Senate, and is currently being considered by a House committee.

Goemann says the current policy violates First Amendment rights as well as Facebook’s own privacy policy, which states:

“You will not share your password, … let anyone else access your account, or do anything else that might jeopardize the security of your account.”

Goemann calls the current policy “coercive,” even though employers ask permission. Collins agrees.

“In today’s jobs market, people can’t afford to be jobless,” he says. “People have to make that decision between their privacy and their family, and it’s one that they should not be forced to make.”

The Balancing Act

Why would employers even want to see this kind of information to begin with?

“At least conceptually, what employers are looking for is job-related information,” says Steve Kane, a human resources expert with a background in labor law. “There are a whole lot of things one could argue could shine a light [on workplace performance].”

But that doesn’t mean Kane thinks it’s always worth it.

“What a lot of employers are doing … I hate to use this word — are playing with fire,” he says.

Employers are looking up information without getting permission. As The Associated Press reports:

“Companies that don’t ask for passwords have taken other steps — such as asking applicants to friend human resource managers or to log in to a company computer during an interview.”

Accessing someone’s Facebook profile may also reveal information that labor laws forbid employers from asking about, like marital status, sexual orientation or political affiliation.

“We would like to believe that, you know, people are bias-free,” Collins says. “But, you know, if we’re honest with ourselves, we would admit that people do hold some personal bias.”

Kane says employers should at least get the job applicant’s written permission to access their social media account. And the employer should provide a justification for why that access is necessary.

Employers have to balance their need to know with the prospective employees’ privacy, Kane says.

For some employers, the risks may be worth doing some extra digging. There has always been a downside to hiring the wrong person. Plus, almost all legal complaints filed are related to firing, not hiring, Kane says.

“Those cases are very, very infrequent,” he says. “As a result, all employers have to do this balancing test.”

Exceptions To Hypothetical Rules

Kane also notes that the rules are different for private positions, versus public positions, like Collins’ with the Department of Corrections. The ACLU can argue that the government is violating employees’ First Amendment rights; the argument is harder to make with a private company.

Any legislation on the topic should provide exceptions, Kane says, like for protective service positions. In those cases, he argues, it may be necessary to know more personal information. However, Kane says he “can’t think of that many jobs where you would need to know things that are not really job-related.”

For now, he says, employers continue to wade through “unexplored territory.”

“The law hasn’t caught up with the technology here,” Kane says.

As with other new technology through the years, he says, it will take time and new standards to answer the question of the employer’s need to know versus the employee’s privacy rights.

“What is considered private is always going to change,” Kane says.

For Goemann of the ACLU, this fight has only just begun. Legislation similar to Maryland’s is already being pursued in Illinois.

“I think as this story comes to light … we’re kind of just hitting the tip of the iceberg in terms of what’s happening with employment,” she says.

“I felt disrespected. I felt that my privacy was invaded,” he tells All Things Considered host Robert Siegel, “but not only my privacy, the privacy of my friends and that of my family that didn’t ask for that.”

Collins was applying for a job with a prior employer, the Maryland Department of Corrections, after a leave of absence. He let his interviewer log in and search his profile with the screen facing away from him. The justification? The department says they are concerned about gang affiliation and gang infiltration in their facilities.

“I can appreciate their need to create a secure facility, but not at the cost of invading privacy,” Collins says.

The Legislative Battle

He got the job, but has since left to attend nursing school. He also took his complaint to the American Civil Liberties Union. The state suspended it’s old practice and then changed its policy following the original complaint. Now, providing the username and password is not mandatory, but the ACLU says that doesn’t go far enough.

“We don’t really feel that that’s an adequate solution,” ACLU legislative director Melissa Goemann tells All Tech Considered.

Now, Collins and the ACLU in Maryland are working with state legislators to pass a bill that would prevent employers from even requesting such information. The bill passed the state Senate, and is currently being considered in committee in the House.

Along with arguing that the current policy violates First Amendment rights, Goemann says it also violates Facebook’s own privacy policy, which states:

“You will not share your password, … let anyone else access your account, or do anything else that might jeopardize the security of your account.”

Goemann calls the current policy “coercive,” even though employers ask permission. Collins agrees.

“In today’s jobs market, people can’t afford to be jobless,” he says. “People have to make that decision between their privacy and their family, and it’s one that they should not be forced to make.”

The Balancing Act

Why would employers even want to see this kind of information to begin with?

“At least conceptually, what employers are looking for is job-related information,” says Steve Kane, a human resources expert with a background in labor law. “There are a whole lot of things one could argue could shine a light [workplace performance].”

But that doesn’t mean Kane thinks it’s always worth it.

“What a lot of employers are doing … I hate to use this word — are playing with fire,” he says.

Employers are looking up information without getting permission. As The Associated Press reports:

“Companies that don’t ask for passwords have taken other steps — such as asking applicants to friend human resource managers or to log in to a company computer during an interview.”

Accessing someone’s Facebook profile may also reveal information that labor laws forbid employers from asking about, like marital status, sexual orientation or political affiliation.

“We would like to believe that, you know, people are bias-free,” Collins says, “but, you know, if we’re honest with ourselves, we would admit that people do hold some personal bias.”

Kane says best practice would be to at least start with written permission — and a justification for why it’s necessary.

Employers have to balance their need to know with the prospective employees’ privacy, Kane says.

For some, the risks may be worth doing some extra digging. There has always been a downside to hiring the wrong person. Plus, almost all legal complaints filed are related to firing, not hiring, Kane says.

“Those cases are very, very infrequent,” he says. “As a result, all employers have to do this balancing test.”

Exceptions To Hypothetical Rules

Kane also points out that the rules are different for private positions, versus public positions, like Collins’ with the Department of Corrections. The ACLU can argue that the government is violating employees’ First Amendment rights; the argument is harder to make with a private company.

Any legislation on the topic should provide exceptions, Kane says, like for protective service positions. In those cases, he argues, it may be necessary to know more personal information. However, Kane “can’t think of that many jobs where you would need to know things that are not really job-related.”

For now, he says, employers continue to wade through “unexplored territory.”

“The law hasn’t caught up with the technology here,” Kane says.

As with other new technology through the years, he says, it will take time and new standards to answer the question of the employer’s need to know versus the employee’s privacy rights.

“What is considered private is always going to change,” Kane says.

For Goemann of the ACLU, this fight has only just begun. Similar legislation to Maryland’s is already being pursued in Illinois.

“I think as this story comes to light,” she says, “I think we’re kind of just hitting the tip of the iceberg in terms of what’s happening with employment.” [Copyright 2012 National Public Radio]

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