29 May Social Media, Passwords, and the Hiring Process: Privacy and Other Legal Rights
This is my third blog exploring the topic of social media and employment hiring practices. My first blog in April, “How Your Social Media Profile Could Make Or Break Your Next Job Opportunity”, discussed a recent study which showed how a candidate’s social media profile could hurt their chances of getting hired and the need for job seekers to actively manage their online social profile.
Do you understand your privacy rights in the hiring process?
My second blog in May, “Recruiting, Reinvented: How Companies Are Using Social Media In The Hiring Process”, looked at the topic from the perspective of a company that uses integrated social media data to help employers find the right hires.
For this third blog I met with Renee Jackson, a Labor and Employment lawyer with Nixon Peabody LLP, who has gained particular renown for her cutting-edge technology and social media practice. My goal in meeting with Renee was to better understand the topic of social media use in hiring practices from a legal perspective.
Renee Jackson is a widely published author, commentator, and speaker on the topic of social media and she provides companies with counsel regarding the intersection between social media, technology, and the workplace. Social media and technology have transformed the way companies do business, and Renee has been at the forefront of monitoring how these trends in business impact both employers and employees.
While Renee was in town for a speaking event at a privacy conference, we sat down for lattes at Macrina Bakery in Seattle to discuss the topic of social media and privacy issues in the hiring process.
Q&A with Renee Jackson, Labor & Employment Lawyer, Nixon Peabody
Q: As a labor and employment lawyer with specialized knowledge in social media, what do you see are the trending topics right now regarding employer use of social media in the hiring process?
Renee Jackson, Labor and Employment Lawyer
Renee: Media coverage is still heavily focused on the various state and federal bills aimed at stopping employers from asking for applicants’ social media passwords. These bills were introduced in response to reports that surfaced in March about a handful of employers who were asking for applicants’ passwords.
A particular hot topic for employers is the legal grey area surrounding the various online “tools” that are being used to assist in the hiring process. For example, employers who are “Googling” applicants, contracting with third parties to conduct social media background checks, or using so-called measures of influence (such as Klout) to make hiring decisions. These tools, if used incorrectly, are fraught with legal risk.
Q: Privacy rights of job seekers seem to be an area of confusion. What privacy rights do applicants have in regard to information about them on the Internet or in social media?
Renee: First, it’s important to note that the law is lagging far behind technology in most instances, and employment and privacy laws are no exception.
Applicants and employees generally have no expectation of privacy with respect to information in the public domain (i.e. on the Internet generally) and employees generally have no expectation of privacy in their company email accounts. The law covering the huge grey area in between those points (personal email accounts, social media accounts, smart phones, etc.) is still developing, and guidance has come only on a case-specific basis. At this point, the privacy line seems to be drawn at any non-public Internet or social media sites where access to information requires authorization or permission. This was true even before the password bills were introduced.
However, it is critically important to note that just because information in the public domain is fair game for employers to look at, it does not mean that employers can lawfully use that information in the hiring process.
Q: In your law practice you provide employers with advice on staying ahead of social media and privacy issues relating to the workplace. What are your recommendations to employers who want to request applicants’ or employees’ social media passwords?
Renee: I don’t believe there are many employers who are requesting social media passwords, but to the extent there are employers out there who wish to do so, I would tell them there are other laws that arguably already prohibit this practice. Regardless of what state an employer is in, I recommend that they not ask for an applicant’s or employee’s social media or personal email password. I also recommend against “shoulder surfing,” i.e. asking an applicant or employee to log into a personal social media account while a representative of the employer is standing over their shoulder and viewing the content on the page.
Do you know what to do if asked for your social media password?
Q: What would you tell a job seeker to do if an employer asked for a social media password?
Renee: I only represent employers, so I normally don’t provide advice to job seekers. That being said, I understand the applicant’s dilemma in this situation, especially in an economy where jobs are scarce. An applicant could ask if there is another way to provide the information that the employer is seeking.
For example, if the request happens verbally during an interview, a job seeker could respond with: “Is there something in particular you’re looking for that wasn’t on my résumé? I’m happy to discuss anything that relates to my qualifications and employment history with you while I’m here.”