June 1, 2012
As millennials, thirty-somethings and even octogenarians now share tweets, photos, and content on platforms like Twitter, Facebook, and Pinterest, some privacy experts have cautioned that the flippant post or photo showing a wild weekend might end up being used against the poster in the hiring process or at an annual review.
That warning has proved to be true: employers, potential employers, and college admissions counselors have found a treasure trove in social media profiles that allows them to winnow through stacks of resumes quickly. A recent report from Public Radio International indicates over 90 percent of employers screen job seekers’ social media profiles as a form of “background check.” And profiling is fruitful. Two in three employers have rejected candidates based on something found while profiling.
Congress and States May Draw Line on Employers’ Social Media Profiling
Under existing federal laws such as the National Labor Relations Act and the Stored Communications Act, current employees may already have a right to protect social media accounts from employer review.
Bills to curtail employers’ ability to request social media passwords from job candidates are being considered in several states. California, New York, Illinois, and Maryland are currently debating various prohibitions on employer social media profiling.
This month, the U.S. Congress also stepped into the fray with legislation introduced into the House that would prevent employers from requesting that employees or job applicants provide social media account passwords during the hiring process or in the course of employment.
Some lawmakers and employment attorneys argue that access to a job applicant’s social media accounts might provide employers with ammunition that would open them up to liability for discrimination under current law. Employers could find messages or posts in social media accounts that relate to the job seeker’s ethnicity, nationality, or sexuality. They might discover pre-existing medical conditions or a job seeker’s religious preferences.
Other advocates say that the request amounts to an invasion of the job seeker’s privacy.
Keeping Up With Changes in Social Media Law in the Workplace
Social media profiling is just one example of the evolving nature of employment law. Human resources departments, small business owners and other employers must stay abreast of pending state and federal legislation on social media and other areas of employment law to reduce the risk of employment lawsuits or other legal actions.
Learn more about Thomson Reuters products like Reg & Leg Center or 50 State Surveys, which can help human resources departments and others in the corporate legal department to craft employment practices and policies that comply with the law in all the jurisdictions in which they do business.