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HR Esq

The Social Media Password Debate

Devora Lindeman
Contributor: Devora Lindeman
Posted: 04/05/2012

Apparently, in response to the legal cases reprimanding employers for improperly obtaining access to their employees’ and applicants’ personal social media sites, employers came up with what would seem to be a very effective work-around—demanding the passwords or threatening termination or cessation of the application process. Really?

Although social media can be a treasure trove of information about employees and applicants, US employment lawyers have advised that such expeditions need to be undertaken cautiously. For example (and I’m sure you’ve heard this before) finding out information about the employees’ or applicants’ protected categories (such as sexual orientation, religion, disability, genetic information or union sympathies) could put a U.S. company in the difficult position of knowing information it is legally not permitted to act upon. On the other hand, viewing an employee’s or applicant’s FaceBook or other personal social media page can give the company insight into the person’s judgment—and sometimes into their illegal drug use, gambling, or other outside activities with which the company would rather not be associated. But is violating the employee or applicant’s privacy and demanding passwords when the employee has set their security protocols to exclude the prying eyes of the general public, or having the employee/applicant access their personal page for their manager/interviewer to view, an appropriate thing to be being done by the corporate world?

B.F. ("before FaceBook"), HR didn’t demand that their employees take the HR managers or their supervising mangers home to tour their bed room, or insist that the managers be permitted to tag-along with an applicant on a Friday night out. They didn’t ask an applicant to hand over their PDA so the manager could review who was in their address book, or which events they had on their calendar. Hiring Managers may have taken applicants out to lunch or out for drinks with potential co-workers to see how the applicant behaves in a more social setting (with or without alcohol)—but HR Managers would never have asked to see the applicant’s family tree or their medical records or third-grade report card.

The question is—where do we draw the line between business and personal? What do companies have a right to know about an applicant or current employee? Notwithstanding the fact that information could be revealed that would help companies make business decisions about individuals, this, to me, seems to be going too far-- And I’m on the company’s side!

In fact, there has been so much uproar about the practice of demanding access and/or passwords to personal social media sites that just last month, the U.S. Attorney General was asked by two U.S. senators to investigate the practice to determine whether it is a violation of federal law. That part of the story is certainly a "to be continued." It is likely that if the AG determines that no federal laws were violated, the U.S. Senators interested in this activity will certainly propose one. Thus, if it is not illegal at the present, the likelihood is that it could be in the future, should Congress determine that this is another area to legislate.

As far as what companies should do with the practice under investigation, it likely would be prudent not to indulge. Moreover, remember the Golden Rule? As HR Managers, would you want those employees or applicants looking at your FaceBook page? Thus, there’s more to consider than just the legal aspects of this activity. Besides, companies have been hiring employees for far longer than computers have even existed—and successfully finding excellent candidates who made good team players and who contributed to the company’s growth without accessing their FaceBook page. Just because technology exists, does not necessarily mean that it should be used in all situations.

Devora Lindeman
Contributor: Devora Lindeman
Posted: 04/05/2012