By: Renee Henson
As social media and technology increasingly become intertwined with everyday life, the concept of internet privacy rights is now relevant when considering labor and employment rights. A showing symptom is that a speech of caution is now typically given to students across academia. The refrain is that some internet activity may reflect poorly on students when transitioning to searching for a job. There is a reason for this perception; the number of employers that use social media to inform hiring decisions has increased 500% over the last 10 years (statistical info found here). Further, 60% of potential employers search social media sites when researching job candidates.
Employers have even asked applicants for their social media passwords to access posts and material not accessible to the broader public. Some employers, dissuaded by the ACLU, have resorted to requesting that someone digitally connect with someone known to the employer or to login while the employer looks over the employee’s shoulder. See here. The term “shoulder surfing” is used when an employer asks an applicant to login to his or her social media account, while the employer asks them to show private messages and or photos (see here for more info). As a result, employers have made adverse hiring decisions based on information that supports drug use, drinking problems, sexually offensive imagery, violence, and behavior that suggests bad judgment (perhaps of special concern for law students entering the legal world). Most people tolerate that some information on public platforms may influence hiring decisions. When and where internet privacy rights should exist is an open question, but the line has been crossed when an employer asks for a password or employs similar tactics.
Employers that request applicants’ private passwords or use similar tactics may be acting unfairly, but little law exists to protect such rights. As far as statutory prohibitions, requesting passwords to social media accounts by employers is prohibited in only a handful of states (see those states here). Employers that make hiring decisions based on online information are risking discrimination claims. Under Title VII, employers cannot make hiring decisions based on race, color, religion, sex, or national origin—all information that may be readily available on a person’s Facebook page. Based on current law, one should be attentive to information that is posted anywhere online. However, legislatures should put an end to these unfair practices and require separation between applicants’ social media activity and those applicants’ ability to get a job.