Since I first read the story last week of the employer requiring an applicant to share his Facebook password during an interview (a condition for employment), business, government, politicians and loads of lawyers have commented on its appropriateness and legality. The article, in the March 20, 2012 edition of The Social Graf by Erik Sass, reports on a survey where one in five tech companies rejected an applicant because of something they found in their social media profile.
Most everyone interviewed or writing about this is firmly against employers asking for passwords. The Department of Justice described the employer's request as "overly coercive." Yet some employers are still asking employees to log in to Facebook during an interview (believing it is less egregious than asking for the password outright).
Employers agree that Facebook and other social media sites are the best background checks of all. They hire social listening experts, who are the digital gumshoes of our time. We know that lawyers scrape social media content and use what they find in courtrooms to discredit witnesses, defendants and plaintiffs. The Florida Bar Association scours it to determine whether bar applicants are suitable for membership. So, plenty of employers and others are using it today to evaluate job candidates, current employees and others, and essentially making decisions based on what they unearth – thumbs up or thumbs down on this person's credibility and suitability.
Too many law firms have written about this recent story, but have tread too lightly for my liking on whether they think it's a defensible idea. I asked Mark Shank and Greg McAllister at Gruber Hurst Johansen Hail & Shank for their opinion — here is what they said:
HEADLINE: Employers, be cool—but don’t chill.
The days of employers ignoring social media are in the distant past. In fact, responsible employers provide reasonable social media policies (although many seem paralyzed by this process). Unfortunately, too many employers’ regulations are overbroad, invasive, and—here’s the magic phrase—chill employees’ rights.
The National Labor Relations Act (NLRA) gives rights to employees and tells employers not to “interfere with, restrain, or coerce” those rights. So internal alarms rang when reading a few statements from the “Employers Asking for Employees’ Passwords. article.
Statement No. 1. interviewers asked interviewees “…for their Facebook profile passwords as part of the job interview process.”
First, there are proposed state laws to prohibit employers requiring access to applicants’ social media accounts. Also, job applicants receive protections from discrimination under the NLRA. Thus, employers requesting profile passwords could later be charged with discrimination.
To make things worse, employers could incur liability for their request. For example, employers could face liability for discrimination, negligent analysis of the profile, failure to train interviewees, or improper surveillance. And a well-recognized company issued a warning: Facebook’s Chief Privacy Officer warned companies that Facebook could “take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action, including by shutting down applications that abuse their privileges."
Statement No. 2. “…employers force employees to become online ‘friends’ with the human resources manager…”
Regulating “friending” on social media is not a bad idea, if done for the right purpose. For example, prohibiting employees from pressuring other employees to be Facebook “friends” may be allowed if the intent is to discourage harassment.
But forcing employees to “friend” their employer’s human resources (HR) is a potential NLRA violation. The NLRA protects employees’ rights to discuss union activity and other activities. It seems reasonable that requiring employees to add HR as a “friend” would illegally restrict, or at least interfere with, the employee’s rights to discuss protected activities.
Statement No. 3. “…contractual agreements not to post negative comments about the employer are now commonplace.”
That statement is (1) true and (2) a concern for employers with a policy that fails to narrowly define “negative.” Simply prohibiting “negative” language—especially if the policy fails to limit the scope of “negative” language—is likely unlawful under the NLRA.
But employers’ hands are not tied. For example, it’s not unlawful to prohibit employees from slandering the employer, if the prohibition includes language that clearly limits illegal activity.
Note No. 1. A note for Law Firm 4.0 readers assisting volunteer organizations: volunteer organizations utilizing social media are frequently and wisely incorporating policies to promote themselves, protect their brand, and limit liability.
Note No. 2. Employees, remember that using your work computer and work accounts often provide many fewer protections than the protections discussed above.
Mark Shank can be reached at firstname.lastname@example.org and Greg McAllister can be reached at email@example.com.