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The Practical Employer

Social Media Disclosure Is So 2008

Do you want to be viewed as Big Brother? Or, do you want practices that engender honesty and openness?

Those who cannot remember the past are condemned to repeat it.”

— George Santayana

It’s been eight long years since Bozeman, Montana, set the internet on fire by requiring that job applicants for municipal positions turn over passwords to their personal social media accounts as part of the application process. In the wake of that story, states rushed to introduce legislation prohibiting this practice; many succeeded. And, the story more or less died.

Thank you, NBC, for reigniting it. 

A recently fired NBC employee claims a recruiter required that she disclose the contents of her Facebook and Instagram profiles before the TV network would even agree to interview her. Why? Because, according to the claim, NBC specifically asked the recruiter only to source good-looking applicants for the position, and the recruiter needed to see pictures before selecting the candidate for an interview.

The lawsuit, filed in Manhattan Supreme Court, alleges that NBC was not shy in demanding the social media photos before hiring female employees. The plaintiff, Stephanie Belanger, and NBC have been silent on the lawsuit.

The New York Post, however, quotes Belanger’s attorney, who asked, “Why would that be anything you would ask of someone you want to work there? Why is that on your radar at all?”

Let’s place to the side the issue of hiring based on “looks.” Let’s all just agree that it is a terrible (and almost certainly illegal) idea.

Instead, I am focusing on the social media issue.

Despite all the negative response this story is receiving, I would be surprised if 1 percent of 1 percent of all employers have even considered asking a job applicant for access to a private social media account, let alone carried through on the thought by making it a hiring requirement.

And do you know why most (nearly all?) employers do not do this? It’s bad HR policy, and it also carries with it significant legal risk.

EEO risks: Mining Facebook and other social sites for information on job applicants can reveal a wealth of protected EEO information (age, religion, protected medical information, genetic information). The risk is great enough when the information is publicly available; it is exponentially heightened when you gain unfettered access to information shielded by a password. The best practice? Prohibit anyone in the chain of hiring from viewing candidates’ social media profiles. Train an employee, insulated from the hiring process, to do your social media searches, scrub all protected information, and provide a sanitized report to those responsible for making the hiring decision. That way, no one can argue that protected information posted on a social network illegally influenced a hiring decision.

Stored Communications Act risks: At least one court has concluded that an employer that requires employees to disclose passwords to social media sites violates the federal Stored Communications Act, which extends liability to parties that exceed authorization to access electronic communications. While this area of the law might be unsettled, testing it could prove a costly mistake.

Legal issues aside, this story raises another, more fundamental, question — what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door, with no sense of personal space or privacy?

Or, do you value transparency? Do you want HR practices that engender honesty and openness, and that recognize that employees are entitled to a life outside of work?

Social media provides many benefits to employers. It opens channels of communication between employees in and out of the workplace.

And, when used smartly, it enables employers to learn more about potential employees than ever before. You can learn if an employee has good communication skills, is a good cultural fit or trashed a former employer. But, this tool has to be used wisely to avoid legal risks. Requiring passwords is not smart.

While it seems like we cannot recall a time without social media in our lives, it remains a new and developing form of media. The rules and regulations that govern it are still evolving.

Moreover, governments are looking for opportunities to regulate it. If a small minority of businesses pursues this poor HR practice, state legislatures and Congress will continue pursuing legislative solutions.

Do not provide the government with this opportunity. Can we all just agree that requiring social media passwords is a bad idea and finally move on from this story?

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.