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.