We are told that things are getting better out there, notwithstanding how much more it’s costing to drive ourselves out there. But hiring seems to be inching upwards, they say, and that comes with a host of issues for you to consider. Particularly as it relates to employer use of social media. Today and Wednesday, I will be noting two of those issues that should result in, at least, you pausing before quickly hitting the next key stroke.
The first “trend” appears to be that a greater number of employers are demanding that applicants for employment disclose their social media passwords as part of the interview/application process. From the employers’ standpoint, why not? They’re looking at the employees’ public profile and background information available online anyway, so why not make it easier and get the password for the private stuff? Plus, what do those employees have to hide? From the employees’ vantage point, it is yet another intrusion into their private lives, and opens the door to employers obtaining and relying on information that has no real relation to their ability to perform the job.
There are generally two ways to react to a trend: either facilitate and enable the continuation of that trend, or attempt to buck the trend. We told you last March 14th and April 26th about Maryland becoming the first state to propose legislation that would prohibit employers from demanding social media passwords. That bill has not yet been enacted into law, however the “buck the trend” train has since passed through additional legislative stops.
For example, in Illinois, the legislature just introduced a proposed amendment to the state’s Right to Privacy in the Workplace Act that would make it illegal for an employer to gain access to an applicant’s social networking account during the hiring process. Rather broad in the term “gain access”, but it does not appear that the bill would proscribe any access to an otherwise public profile.
Similarly, the California state legislature (surprise, surprise) recently introduced a proposed law entitled “employer use of social media.” Interestingly, the bill does not simply address access to social media, but deals with the issue in the context of an employer’s existing legal duties when it comes to negligent hiring. The proposal provides in part:
“Under existing common law, an employer has a duty to exercise reasonable care in employing a person and is required to use reasonable care to discover whether a potential employee is unfit or incompetent. This bill would provide than an employer does not fail to exercise reasonable care . . . by the employer’s failure to search or monitor social media, as defined, before hiring the employee. This bill would also prohibit an employer from requiring an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee.”
So, while the proposed California law would end the practice of demanding social media passwords by employers, at least it also provides protection to employers who argue that today’s digital age puts a burden on them to do such comprehensive background checking in the first place.
Employer Take Away: What should you as an employer take away from this development?
I predict that more states – and perhaps Congress on the federal level – will continue the trend disfavoring any demand for passwords during the hiring process. The question becomes how broadly or narrowly the laws are written, and whether they also offer a modicum of protection to the employers who are surely faced with the argument that they are required to “check out” an applicant as long as the information is so readily available.
But when it comes to your hiring practices, like everything else, don’t just do for the sake of doing. Think about what you’re really trying to accomplish, and then whether your pre-employment process will truly effectuate that goal. At the very least, determine the status of legislation on this issue in your jurisdiction.