Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Employer access to employee and applicant social media information remains a hot topic. Through blog posts and other online publications, Littler has discussed how various courts, agencies, and legislatures have tackled the issue. Maryland is currently the only state that prohibits asking individuals for social media login and password information, though similar legislation awaits the governor's signature in Illinois. Moreover, multiple state legislatures and the U.S. Congress have introduced proposed laws. Beyond Maryland, however, the practice's validity is uncertain – which is not surprising because most privacy and antidiscrimination laws predate social media.
The legislative process is normally reactive, i.e., a practice becomes widespread and legislation is introduced to curb the activity. However, with social media access requests and review, state legislatures may be reacting to a perceived issue that is not really a problem. There is limited data concerning employer access requests, but what is available suggests the practice is not as prevalent as one would expect based on media coverage. For example, a recent Littler survey found that only 1% of businesses used access requests during the hiring process. A series of Careerbuilder.com surveys suggest the practice peaked years before the issue occupied the spotlight: in 2008, 22% of employers said they used social media sites to screen applicants; in 2009, 45%; in 2012: 37%. While there was a jump in reported use from 2008 to 2009, use has declined since then. Although survey data may not provide conclusive evidence concerning the pervasiveness of employer access requests and review, it certainly casts doubt on whether proposed legislation is necessary.
Regardless of whether courts, agencies, or legislatures legitimate the practice, there are practical considerations employers should consider when deciding whether to incorporate social media access requests and review into hiring and employment practices.
Information Overload & Underwhelming
Access requests present employers with numerous practical challenges. The initial hurdle employers must overcome is locating pertinent information.
An ever-expanding number of social media sites exist online. To channel P.T. Barnum, social media sites are like suckers: there's one born every minute. Anyone who has shared an article online knows there are unlimited sites where information can be posted and stored. This begs the question "Where to look?"
Some employers hedge their bets with Facebook, which, with over 900 million active users, is the logical choice. However, many individuals maintain numerous accounts across myriad platforms, so it is possible that X (Facebook) does not mark the spot on the applicant/employee treasure map. Moreover, a company's internet firewall might prevent you from accessing potentially relevant information, depending on the social network involved (e.g., adult themed). Sometimes ignorance is bliss.
To be completely apprised of established and emerging social media sites, a company might need a social media consultant or an extremely social-media-savvy HR department. Fully vetting an applicant through social media requires an inordinate amount of patience and idle time. Even if time and money are not issues, there is an overabundance of information available online that increases exponentially each second. Uncovering relevant information may be the online equivalent of finding a needle in a haystack. Realistically, employers more likely will encounter countless pictures of what meals the individual has eaten or indicia that he really enjoys George Takei posts.
Avatars Aren't Limited to Hollywood Blockbusters and World of Warcraft
Because of media coverage, many believe businesses may request access to and review their social media information, which they fear could be detrimental to their potential, current, or future employment status. Individuals may take corrective steps to ensure the information contained on social media sites does not reflect poorly upon them. Accordingly, even if provided access, employers cannot be confident that the information reviewed is without omission or creative editing. Below are actions applicants and employees might take to deflect or elude social media checks.
Maintaining multiple social media profiles is commonplace. An individual may have multiple accounts to meet different needs: Twitter ("What's Justin Bieber doing right now?"); Facebook ("Sometimes I need to escape from the city into the country; that's why I play Farmville"); LinkedIn ("I need a better job to afford more Farmville credits"); Instagram ("I had lasagna for lunch. I thought you'd want to know, and see"). Or he may have multiple accounts in name only to stem the tide of emails informing you that, "[Your friend] just joined [new social media site] and wants you to join" emails.
As a defensive maneuver, however, an individual may create multiple profiles within each platform. He will maintain a personal profile for friends and family and a separate profile for employment purposes – the phantom profile. The personal profile represents what that person likes, thinks, and gets up to when the boss is not looking. The phantom profile represents what the individual believes employers want to see – a non-offensive, well-rounded candidate without bad habits or questionable judgment.
Phantom profiles may not be obvious. An individual with one friend clearly is not "on" Facebook. Don't expect to see "hard worker" or "I live for the weekend (because I can catch up on work)" under "About Me," or that an individual "Likes" Microsoft Excel. Variations will be subtle; a personal profile that is not personal. The profile likely will contain generic, non-alarming information and posts: name; birthdate (not year); where (but not when) the individual attended school; current and former employers; safe interests and hobbies (e.g., reading, film, exercise) – information listed on an employment application. Additionally, if he and his friends create phantom profiles and "friend" one another, the deception is less obvious and a phantom social network is created.
Padded profiles are less troubling than phantom profiles but remain problematic. Most people know antidiscrimination laws exist and can identify at least one protected class. Hoping to avoid denied interviews and missed employment opportunities, job seekers may "pad" profile pages with one or more protected classification – validity unimportant. However, unlike phantom profiles that purport to provide relevant information to employers from application through employment, padded profiles generally boost an applicant's chances during the pre-interview process. For example, an individual may tweak a profile to include non-physical, protected classification markers that are not readily confirmed at an interview: religion; political beliefs; union affiliation; sexual orientation; certain disabilities (e.g., recovering alcoholic or drug addict). Consequently, the discovery of otherwise unavailable protected classification information during the application process could pose legal and public relations concerns for employers.
Although social media access requests and review probably are less common than reported, this may not halt current legislative efforts to curb the activity. In the meantime, the practice is so far unregulated, except in Maryland. Regardless of statutory barriers, however, employers should consider the obstacles that remain. Even if provided with access, employers cannot be confident that the information reviewed is without omission or creative editing. Employers should consider these practical challenges, along with actual and potential legal obligations, when constructing, reviewing, or revising hiring or employment policies and procedures.
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