If it seems like every other day there is a new story about someone who was fired for something they posted on social media, that’s because there is. There seems to be no shortage of cautionary tales about people who have yet to comprehend the impact their social media activities may have on their livelihood. Recognizing the treasure trove of information potential hires sometimes post online, companies and public agencies have integrated social media checks into their hiring practices. Many allege that they want to ensure they’re not bringing on board someone who is involved in illegal activities or is affiliated with a gang. But most employers have a more benign concern: They don’t want to hire someone who will post or tweet something that may reflect badly on his employer.
But there is a difference between a thorough social media check and an unabashed privacy violation. Recent news reports note that some companies and public agencies have gone so far as to request that prospective hires turn over their user names and passwords for their email, Facebook and/or Twitter accounts. That way, the potential employer can log in and take a good look around all their online activities.
Some companies or public agencies have heeded warnings from privacy advocates and social media sites arguing that such measures may be too invasive. But sometimes their tactics are also questionable. For instance, they may ask applicants to friend someone in the company’s human resources department so that person can have a look around. Or, they might request that the job applicant please log into their accounts during an interview so their postings can be scrutinized on the spot.
Of course, we advocate that anyone wanting to know more about an individual needs to invest some time and energy to tracking down their online persona. After all, federal laws permit employers to use information that is publicly available on social media sites during background checks. And we recognize that, as that never-ending stream of horror show news stories proves, businesses and public agencies are right to be concerned that new hires may say or do something online that could reflect badly on their employers.
But we agree that asking potential hires to “consent” to having their privacy invaded in the name of due diligence is going too far. As law Professor Lori Andrews argues, “[v]olunteering is coercion if you need a job.” If there is a fear that an employee’s comments online could tarnish a company’s reputation, then employers are much better off counseling potential hires about the need to maintain strict privacy settings on their Facebook and Twitter accounts. That way, efforts have been made to ensure that an employee’s online complaints or questionable comments are shared only among his online friends, and not the public at large.