Is it okay to use Facebook to screen applicants?

Facebook is back in the news. And guess what? The stories have to do with privacy. (So what else is new?)

But this time the shoe is on the other foot.  It’s not Facebook that is the source of controversy but employers who use Facebook to screen backgrounds of job applicants.

In their effort to improve their applicant screening processes, some companies (and very often government agencies) are going beyond resumes, reference checks, and background screening.  The temptation to use Facebook and other social networking sites is high.

It has become common place for many managers to review publically available Facebook and LinkedIn profiles, Twitter accounts, and other sites to learn as much as possible about a job candidate’s character before they hire him or her. But many applicants, especially on Facebook, have learned to set their visibility to private, making them available only to “friends” or selected connections.

And there’s the rub.  When a profile is blocked from the public eye, some managers are requesting the applicant turn over his Facebook username and password.  (Several articles also report a few organizations go as far as requesting  applicants give access to all social networking site logins and even email accounts.) All sorts of red flags are popping up.

Questions have been raised about the legality of the practice.  Such practices have become the focus of proposed legislation in several states and several NLRB and lower court decisions have ruled against employers in their right to view private profiles. But the game is hardly over. In my opinion, this controversy has barely begun.

The fight might start with Facebook itself. Following the AP story and avalanche of responses on the Internet, Facebook made it clear to employers that it is a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.

“This practice undermines the privacy expectations and the security of both the user and the user’s friends,” Erin Egan, Facebook’s Chief Privacy Officer, wrote on the Facebook Privacy blog. “It also potentially exposes the employer who seeks this access to unanticipated legal liability.”

How much teeth Facebook has to enforce their terms and conditions is questionable at this point, although they have publicly stated they will “take action to protect the privacy and security of our users.” I don’t know about you but facing the government is one thing. Attempting to tackle Facebook is another – just ask Verizon and Netflix.

But a demand to access private social media content has more serious implications than a violation of social network’s policies.  Let’s take the violation for the First Amendment for example.  It won’t surprise me at all to see a Facebook v. Your Company case pertaining to individual privacy rights show up on the docket of the Supreme Court. Even before then, expect to see Federal legislation limiting employer access to personal information on social networking sites and protecting the privacy of applicants and employees.

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.  

Other managers take a more insidious route.  They peer over the shoulder of a current employee and “request” that he or she show the manager the applicant’s personal profile.

Seeking as much information about a job candidate before you hire makes good business sense.  The cost of hiring the wrong employee, especially one whose values or behavior might embarrass or compromise the company, is high. But have HR and management gone too far in forcing applicants and current employees to turn over their passwords?

Possibly. 

Everything online is not necessarily “fair game” for employers and recruiters. Every applicant has a reasonable expectation of privacy. Coercing or forcing applicants to release protected information raises significant moral and ethical questions as well as legal risks.

For example, a simple Facebook search might reveal a person’s age, gender, color, marital status, ethnicity, religious beliefs, political affiliations, or even medical and disability conditions. All hiring decisions need to be based upon non-discriminatory information that is a valid predictor for job performance. Even if the information is not used in making a hiring decision, rejecting a candidate can lead to allegations of discrimination if the candidate does not get the job. Once the genie is out of the bottle, it’s nearly impossible to put her back in!

To avoid the risks, some employers use third parties to run social media background checks to absolve themselves of discrimination allegations.  However, employers and recruiters should realize that background screening firms using social media information must follow the same federal Fair Credit Reporting Act (FCRA) rules regulating more traditional information sources such as criminal record checks and credit report checks. But this creates another Catch 22.  Social network background checks need to meet the same FCRA compliance as criminal and credit background screening. That means a third party firm must maintain reasonable procedures for maximum accuracy. Since a background screening firm has no way of knowing if all of the online information is accurate or even belongs to the applicant in question, it is difficult for screening firms to perform this service consistent with the FCRA.

Whatever side you take, you do have to admit the debate is one that employers, employees, jobseekers, and the public has to watch. 

What do you think?  Is Facebook fair game for employers?  Are employers going too far?  Let us know.

FYI – while I found dozens of sites offering advice and recommendations to employers about using networking sites for background checks, this white paper was one of the best.  If you have discovered another site(s) with impartial, objective advice, please post them in the comment section.