Social media and privacy rights

Virtually everyone – yes, probably even your parents – is on Facebook.  Facebook’s hundreds of millions of users share untold photos, stories, random thoughts and personal information all day, every day.  And unlike a phone call or in-person conversation, Facebook, and other social media sites, keeps a permanent record of every user’s online life.  As such, social media can create new and unique challenges for employees and employers alike.    

Potential employees may have online identities employers consider useful when choosing whether to hire a job applicant.  However, privacy settings on many social media sites allow an applicant to hide his/her online information from potential employers. As a result, a new trend in applicant background investigation has emerged: asking an applicant for his/her username and password to social media sites during the interview process.

In light of this trend, some states have drafted legislation seeking to outlaw what some consider an invasion of a job applicant’s privacy. Lawmakers in California, as well Illinois and Maryland, have proposed legislation that would prohibit employers from requiring that current or prospective employees provide or disclose any user names, passwords, or other ways of accessing personal online accounts. State lawmakers from Connecticut and New Jersey are considering drafting similar legislation, as is the United States Senate.

Social media isn’t going anywhere.  If anything, Facebook, Twitter and others are becoming ever more entrenched in virtually every aspect of online life.  Similarly, employers are not going to stop screening and investigating job applicants, and social media can often give employers an unfiltered glimpse as to who an applicant really is.  So for the time being, employers are free to mine social media sites for information on potential applicants, but California law has made it very clear that employers cannot demand that applicants or employees hand over user names and passwords.