By Angel Castillo Jr.
In a society where privacy is constantly eroding, recent efforts by some employers to pry into Facebook pages to investigate job applicants should be resisted as an unwarranted intrusion on personal freedom and dignity.
Some employers have recently begun requiring job applicants to provide their Facebook user names and passwords so they can review whatever the applicant has posted privately online. Others — so that the password remains secret — are requiring applicants to access their Facebook pages during the job interview to allow the interviewer to see the content.
While the applicant can say no and withdraw from further consideration, at a time of high unemployment — 9.6 percent in Florida — the request is inherently economically coercive. Applicants will often say yes, reluctantly, hoping to land a job.
More than 156 million Americans use Facebook, and Florida has the fourth largest number of users, around 9.5 million. And as anyone who’s been on Facebook knows, users often post excruciatingly personal information.
While Facebook has threatened to go to court against employers to protect its users’ privacy, it is far from clear whether this new practice is illegal.
The Florida Supreme Court first recognized a common law cause of action for damages for tortious invasion of privacy in 1944. However, one may not complain of acts to which he or she has consented, and an employer’s request would likely not be illegal if the applicant freely and knowingly consented to it, and if the policy is applied to all applicants without discrimination.
Nonetheless, the American Civil Liberties Union believes it is an invasion of privacy for employers to insist on looking at people’s private Facebook pages as part of the job application process. And some critics suggest the practice is a violation of First Amendment rights, as well as the Stored Communications Act and Computer Fraud and Abuse Act — federal statutes that prohibit access to electronic information and computers without proper authorization.
Two U.S. senators, Chuck Schumer, the New York Democrat, and Richard Blumenthal, the Connecticut DDemocrat, have asked Attorney General Eric Holder Jr. and the federal Equal Employment Opportunity Commission to investigate whether such employer practices violate federal laws. Legislators in several states also have introduced bills seeking to outlaw the practice.
Legal or not, this practice adds another ugly tool to the panoply already used by employers to investigate job applicants, one likely to generate bad employee morale and damage an employer’s reputation.
Further, it opens employers to potential liability under federal, state and municipal anti-discrimination laws because Facebook might make them aware of information that it would be unlawful to ask the applicant directly. This can include, for instance, age, religion, national origin, disabilities, marital status, political affiliation, sexual preference, pro-union sympathy, and being the victim of spousal or sexual abuse.
However, until Congress or state legislatures enact new laws, or the courts definitively adjudicate the legality of this new employer practice, Facebook users looking for a job should consider carefully what to post online – or erase.
Angel Castillo, Jr., a former reporter and editor for the New York Times and The Miami Herald, practices employment law in Miami. He can be reached here.
Think first, act second says
They want Holder to investigate and he probably will. Gives him an excuse not to investigate the Fast and Furious fiasco he approved (by specific consent or by omission), and denies.
Darby says
Look at England’s news today. They are going to WATCH everyone thru internet, telephone,camera’s, Facebook, Twitter, etc. The Brits have finally lost all FREEDOM of privacy. Is the USA next. Are we going to stand by and let BIG BROTHER watch our every move ? For me its time to put down these computers,get rid of my cell phone, and move to a rural area of the country. Life is to short to live without FREEDOM !
Johnny Taxpayer says
the practice is ridiculous, but having US senators comment on it, and the US Attorney General investigate it is equally absurd. Employers that require access to facebook are extremely short sighted in my opinion, but they’re not doing anything illegal. This is a perfect example of where the free market will solve this problem without Government’s involvement. High caliber employees won’t consent to this, and eventually employers will realize this and stop this practice after loosing out.
Kendall says
Does anyone know how to find out what companies are doing this? I think some publicity and boycotts might stop this practice.
LOL says
Johnny, you are right. Anyone worth having as an employee would tell the interviewer to screw off then go post about how stupid it is on Facebook.
Yellowstone says
Who in the world would post – for public view – all of their intimate (and trivial) details? For the the sake of mutually sharing their most secretive down to their last mole and tattoo – who cares?
The advice I have always given to those perceptive students is, if you do create a page of ‘secrets to all’, fake it!
I’d like to think that most of the stuff you read on these FBook pages is BS – and it should be.
Any prospective employer should look at it the same way. If they don’t – you should remind that it is.
Otherwise, good advice is – DON”T POST THE TRUTH FOR ALL TO SEE. (Otherwise, you’ll be sorry if you did.)
Nancy N. says
The whole point of Facebook is that IT ISN’T PUBLIC. It’s private to be seen only by those whom you select to let view it through Facebook’s “friend request” system. It’s a way for people to communicate their daily happenings easily with their friends and family – and there may be details on there that they might not want a potential employer to know even though they aren’t what people would consider embarrassing. For instance, I provide my family updates on my daughter’s serious health condition via Facebook sometimes. This is not an issue I would want shared with a potential employer, who might be concerned about the effect that it would have on their medical costs if they offer insurance to employees or my work attendance and choose to pass me over for consideration.
tulip says
I don’t think companies have ANY rights to access a person’s facebook account any more than someone’s e-mail, financial reports, or any other private information. I would just lie and say I don’t have a facebook account.
Will the person being interviewed have the right to the employer’s FB account? NOT!!
David says
tulip: Facebook is not private information. It is a SOCIAL NETWORK shared by all. If you’re not paying for it, then it’s not private.
Sherry Epley says
The text of George Orwell’s “1984” should be required reading for all middle school students. . . Big Brother is here! The majority of Facebook users are voluntarily being lead into giving up their privacy and personal identity without even realizing it. Our current (bored, entitled) culture is so addicted to “attention”/pseudo celebrity status that few seem to be considering the massive consequences of posting personal details and ones private thoughts/opinions for all to see and own.
Unless steps are taken to stop this trend and protect our privacy, we could soon possibly see the end of the freedom in our personal, private lives. . . as we currently enjoy it.
Initialjoe says
I would be OK with it. Everything I have on FB is what I WANT people to see. I would love for employers to know my hobbies (nerd) though i don’t see how it is relevant. I guess they want to make sure I am not a gang member or something. MEH.
Nancy N. says
Ok, in that same vein…where does it stop? Are you fine with the police stopping by and searching your house anytime they want since you have nothing to hide and they can make sure you aren’t a gang member then?
Nancy N. says
Key point not included in the article: It is actually a violation of Facebook’s Terms of Use to give anyone else your account password. So companies that require you to turn over your password are requiring you to violate the service’s terms of use.
Anita says
I am astonished at the lack of ire which greets this news. People make dire predictions and utter grim maledictions on government mandated health insurance for all, claiming violation of their inherent rights, but this snooping by someone who may, or may not hire you, is nothing short of the rape of a job seeker’s right to privacy. Those who will never be subjected to this form of intrusion advise, ” walk away” or ” let the free market solve the problem”, as though the folks who would insist on an applicant’s password, couldn’t possibly be the same gang of free market thugs coercing some desperate soul to violate his/her own privacy in hopes of a steady paycheck.
What’s the purpose of this requirement, anyway?; this violation of a person’s civil rights? To ferret out information an employer is legally forbidden to ask? Just another way for an employer to skirt the law, being, of course, fully aware that unemployed people don’t have the means to hire a lawyer? To anyone who faces this dilemma, please understand that your employer is entitled to your presence and your performance of those duties listed in your job description, during your tour. Period! If you are found violating the Constitution, Federal, State or municipal laws in your off time, obviously, you’re going to get canned,. But, you are not required to discuss your sexual or social orientation, your political or religious preferences or anything else of a personal nature and above all, never GIVE anyone access to private information. Personally, my answer to that request would be, “I’ll see you in court.”
Think first, act second says
Anita, and what would your case comprise of, asking you a question you object to and your refusal to give the requested information? What law is violated if you refuse? If an employer asks for your permission to investigate your previous work experiences is that a violation of your “rights”, or a business practice that has been happening for years. Most companies will not answer such requests, but if you have nothing to hide, why hide it?
Nancy N. says
“if you have nothing to hide, why hide it?” What, we aren’t entitled to privacy for the sake of privacy, even if we supposedly have nothing to hide? When did privacy become an unnecessary luxury?
I REALLY think that the people who keep asking “what’s the big deal if you have nothing to hide?” don’t understand Facebook. It’s not just a public bulletin board where you post public stuff for the world to see! It has a private email system built into it that many people use as their primary means of communicating with close friends. Would you want a future employer to have access to browse through all your most private messages with your close friends? To modern youth, that is the equivalent of listening to phone call recordings! Would you let a potential employer tap your phone for a few weeks so they could learn more about you? I don’t think so!
Once an employer has access to your Facebook, they can see all sorts of stuff that could make them reject you – your friends list (your stoner cousin you friended because they are family, for instance, could freak them out), references to medical issues, they have access to all sorts of information that they aren’t legally allowed to ask you about your race, marital status, childbearing plans, political affiliations, etc.
Do you want to not get a job because there is a reference on your facebook to you being a different political party than the interviewer, or a medical problem of a family member that you have to take care of, or you mention that you want another child (meaning you’d need maternity benefits and family leave?)
Has the world really gotten to the point where we think it is acceptable to hand over the keys to our most private communications with the people closest to us for the sake of maybe being able to start earning a paycheck?
Anita says
An employer is, by law, not permitted to ask my age, religion or race. What makes you think he’s entitled to my private password? He would have to give me a reason for thinking that my past “job” performance has anything to do with my “social” networking on FB. It isn’t a matter of having anything to hide, it’s a matter of each of us being entitled to privacy, and yes, it is a violation of my RIGHT to privacy. Think of it as the same principle that you use to protect your privacy when you identify yourself as “Think first, act second says:” instead of your full name when you post.
palmcoaster says
@Anita and all. Here we have The Almighty Corporations aiming at the new slaves….No labor laws, no unions, no workers rights! Take it or leave it, because unemployment is so high that they will hire the next one in the long line, that will abide! Taking these crooks to court…? How, when, while most searching for jobs are broke to pay a lawyer?
Better get used to, unless some extreme conservatives are voted out of office come November and we bring back the compliance/enforcement of our labor laws.
Think first, act second says
pc, what labor law is being broken? Why would you, as an independent business owner as you say, want more regulations on your ability to do business? Do you want the City or County to pass more ordinances that would require you to go before the council/commission before expanding, improving or doing what you think is in the best interest of your business?
palmcoaster says
@Thinkfirst: What you call “regulations” and I call labor laws have been doing fine protecting our workers/employees until 2001.
Our small business indeed have done just fine abiding by the so called “regulations”, that I call labor laws as we never intended to hire slaves but instead decent paid, workers. We, small businesses NOT are driven by GREED. We exist, progress, function with the “work” of our employees that we properly compensate and respect. We do not expect to become millionaires overnight ask, Norton Smitty.
You are totally against our government regulations interference and or violation of our civil liberties and free trade/enterprise etc. that fights corporate greed. But sure you are okay with corporations doing the opposite regarding our civil liberties, etc. We sure do not agree on this one.
Sherry Epley says
Palm Coaster. . . you are right on! Those who want to throw out all government regulations are also throwing out exactly what protects our freedoms and rights. This Facebook privacy issue is just the tip of the iceburg.
Every time we use our charge cards or “swipe” a preferred customer card what we purchase goes into a massive data base and that information is “sold” to those willing to pay for that data. We are heading into a time when prospective or current employers will make promoting and firing decisions, and insurance companies will determine your life/health premiums, based on how much beer or Chardonney was charged on your Visa in the past 6 months.
Weakening OSHA, the Department of Labor and the Unions have sent us digressing into unsafe indentured servitude. Close down the EPA and see how long our cleaner air and water lasts. I could go on and on about the dangerous ripples effect of this anti-government focus.
All I want to do is to ask everyone to please, please think really hard about the repercussions of each day to day decision you make, especially when voting. NOT voting is a decision to give away your power, and it disrespects all those who died to give us that right. Once those laws and regulations that protect our freedoms, rights and well being are gone, it will be too late. We may never have the opportunity to bring them back again. Absolutely, they are as imperfect as we humans are. . . but they should be improved, NOT removed.
You should do all you can to value and protect your privacy, while you still have the right to do so.
Helene says
Anita and Nancy – great posts! This subject makes my blood boil! Anita excellent point to to the hypocritical “Think First”!
THINK FIRST–Employers do not have the right to ask you personal questions such as age, religion, political views, sexual preferences,etc. By passing this by going to FB breaks the law! It is an itrusion of privacy.
Not only that, but no one has pointed out another important point of this FB/employer issue. That is, if the employer has your PASSWORD, then that employer can sign on to facebook AS YOU! That means, any “friends” that think they have a PRIVATE Facebook, actually have someone (said employer) who they did NOT give permission to view THEIR FB. Example, if I am “friends” with Nancy and Nancy gives her password to her employer, then her employer can sign on as Nancy and view MY PRIVATE information also as well as ALL OF MY FRIENDS! THINK FIRST, maybe you don’t understand how FB works. But thi kind of access by potential employers should ABSOLUTELY BE ILLEGAL!!!
[Please don’t call fellow commenters ignorant.FL]
Think first, act second says
You say an employer is breaking the law by going to FB, then report them to the police as law breakers. Don’t give them the information, it’s ok you will win the battle. I am too ignorant to have a facebook account because I am trying to hide many things from potential employers that I don’t want them to know, but I don’t have an ill child that I wouldn’t want to hide the information from a potential employer so they would have to accept him/her on their insurance, sounds like fraud to me though. What ever happened to changing your password on your account? You have stated that by giving away that info you subject all of your friends to scrutiny by your employer. What paranoia, do you think employers are asking for this information to get to your friend? Sorry, I used words that I had to look up in the dictionary because I didn’t understand their full meaning.
Think first, act second says
pc, I am trying to determine what you are saying. As I understand it, you have union employees to whom you pay health and retirement benefits, right? I don’t know Norton Smutty, just some of his posts so I don’t know why he would or would not want to be a millionaire. You say I am against something, how do you know that you don’t even know me. Why do you assume those asking for this information is from large corporations, the post says simply “some employers” (first 2 words of paragraph 2) and to me that implies small companies, therefore your last statement about corps doing opposite regarding civil liberties is nothing more than your presumption. Please explain how you know it is large corporations doing this, not small employers, pls.
palmcoaster says
@Think last act first. This may be my last reply to you. We can see clear where you come from and I am so glad “not to get to know you” I will bother just to reply to your last paragraph. I know what many large corporations do nowadays to their employees as I have two professional college graduate children working for two of them. Also some friends and the abuses go from , after several years of working on these corporate giants the expert employees have to train the younger ones hired at much less pay and once that is done, they are unceremoniously replaced by the new much lower paid hires or given their seniority, are given graveyard schedules like working weekends/holidays etc on hope they will resign. In one medical instrument manufacturer the manager employee had to train Hindus brought in here, to learn in depth procedures and when all learned, they fire all 800 workers, closed the operation and transfer it to India to make more money on slave wages for their share holders. One of the side effects is the very low even dangerous non reliable of doubtful quality manufactured medical equipment used in “our hospitals” made by this corporation in India now.. But as the hospital patients are not aware of it while the FDA looks the other way….all is nice and dandy.
Those employee rights? Since 2001 have none and the trend keeps growing.
I really hope that our citizens get out and vote in the coming elections!
Think first, act second says
pc, Oh I see you do not have union employees or pay for health insurance (remember your POTUS passed this albatross) or retirement benefits. You just condemn others, large corporations, who do provide these benefits. Aren’t those employees rights included in your company?
David says
In this modern times of the use of hi tech to gain information for the capability to perform your job, and for your employer to know who they have working for them, I see nothing wrong with an employer to examine and know the tract of their employees. Many companies have a lot invested in their security and their product in order to compete in today’s market. So to require employers access to their credit, FB, and background is only a measure in protecting the companies asset and security. Would you hire a person who is bankrupted and a history of bad credit to be your CFO ?
Sherry Epley says
@ David. . . After having a career of over 20 years of placing high tech experts making over $100,000 a year, I have some expertise in the field. . . .and have some questions/input:
If you were one of the millions having your identity stolen and your credit ruined by criminals, or your wife took you to the cleaners after a bad divorce and ruined your credit. . . should you then also be mysteriously be found unemployable (due to these background checks) with no opportunity to defend yourself? What if you just happened vote differently than your potential employer, should you not be employed? What if you fought in a war to defend this country and were wounded in a way that may create future medical bills and therefore increased premiums on your prospective employer’s medical plan, should you be unemployable? What if your child was born with a birth defect, resulting in possibly higher insurance premiums?
There are thousands of ways prospective employers would certainly discriminate against those hoping for a pay check if we continue to throw away the laws that protect us with both hands. Labor laws were passed and unions formed, to begin with, to protect us against unscrupulus business owners and manages who abused and discriminated against people on a massive scale in the 18 and early 1900s. We need to respect the wisdom of those that worked hard to create these protections and learn the lessons from such traumatic experiences. Expecting that ethics and integrity will prevail and that employers will be reasonable and fair in their hiring practices is nothing short of folly!
Think first, act second says
A couple of points. 1. If someone posts something about themselves on facebook, or other “social media” should they be selective what that is? If someone is putting enough information on a website that would allow someone to be able to steal their identity, then shame on them, they are not real bright. We all know about the unscrupulous people, foreign and domestic, that are willing to not work, and steal to support themselves, has been going on since the beginning of time.2. You mention being taken to the cleaners by a divorce, I was and I survived and sought and received jobs after that time. I assume you are talking about the affect it has on your credit. 3. I have held many jobs in my lifetime, NEVER, was I asked my party affiliation or how I vote, Never. 4. Veterans, wounded in a foreign war or domestically while on duty should never be discriminated against for that matter. Possibly there may be some job they would not be qualified to do because of a physical loss of limb/s and that has to be considered for the sake of the vet and the company. Try to work on the production line in Detroit building cars if you are wheelchair bound. 5. You say unions are used to protect the hiring by unscrupulous business owners. Unions do not hire employees, companies do and then they join the union, or not in Florida and all other of the 23 right to work states. Almost 1/2 of the states have decided that requiring a person to join a union is not required and this is not the early 1900s, when I will concede unions helped employees, but their usefulness has been used up by their greed and political posturing.
Nancy N. says
The reason you’ve never been asked your party or religious affiliation in a job interview is that IT IS ILLEGAL and you would have grounds for a lawsuit if you weren’t hired.
The entire point of this discussion is that information like that – information that it is illegal for employers to ask about – is freely available on most people’s Facebook pages. Which means that if employers force you to allow them to review your Facebook account they are sneakily receiving the answers to a whole bunch of questions that it is illegal for them to ask you.
David says
@Sherry Epley…. you bring up some go points that could be deemed as exceptional, But I was preferring more to a someone who makes poor business and personal decisions that have resulted in these matters in his or her life. Companies do want to know about you before they hire you to be in charge of their assets and making business decisions. Also if you are using a public Social Network that is shared by all their is no protection for anyone, I see many messages on on this message board and I can pretty much profile that person and know their characteristic and know what kind of person they are.
Nancy N. says
There have been repeated references in this comment section to Facebook as a “public” forum that people shouldn’t expect to have kept private. Obviously the people saying this are not Facebook users. IT IS NOT PUBLIC. It is a place that you post private content that is only available to be viewed by a private list of people that you select.
Twitter – that is public. But Facebook is not public – which is why employers have to have your password to view it!
What’s next? My Amazon or iTunes account password so they can see what I read and listen to? (After all, I’m sure someone somewhere has come up with a study that says readers of certain types of material make better or worse employees.) Where does it end? Where is your line in the sand, people? Or is there even one? Will you just give up all your privacy rights, bit by bit?
Think first, act second says
It ends with election of a new Pres and dishing the socialist who wants you to be dependent on him totally for food stamps, you legal issues since Holder will not protect them, and get a legitimate and reasonable bi-partisan discussion begun, without the hyperbole that this one is so caustic with, about the health issues of this country. It will not happen with this Pres. he has crossed that bridge with these Reps congresspeople. You want health care, elect someone that they can work with, they will not work with O.