Sunday, 25 March 2012

Employers And Facebook Access

It has been in the news that employers want to ask potential employees for access to their Facebook accounts.

On the one hand - for employers, Facebook gives a preview into the character and potential of future employees. Previously, access to such information was a difficult task and almost impossible. For this reason, many employers found that at times they hired people who were not right for their business and companies. Future employees can easily misrepresent themselves to the employers presenting themselves as much more acceptable and worthy of the job than they actually are. For this reason, Facebook has made things much easier for the employers. By taking a look at a future employee’s information on the profiles and other features of Facebook, they can be sure that whoever they hire will fit into their organization and company better.

On the other hand - the whole idea of a potential employer going through your Facebook account is an invasion of privacy; and in some cases will answer those illegal questions that employers are not allowed to ask by law; such as:
  • Do you have any children? If so, how many and what are their ages?
  • Are you single, married, divorced, or engaged?
  • What kind of childcare arrangements do you have in place?
  • Are you currently taking any form of birth control or fertility treatment?
  • What are your plans if you get pregnant?
  • Does your spouse work? If so, what does your spouse do for a living?
  • Should we refer to you as Mr., Miss, or Mrs.?
All of those questions are illegal to ask but a quick look at your Facebook page may indeed answer those questions. For example you may have photos of your children posted. You may have made a comment about trying to get pregnant. You may have mentioned where your spouse works. Which although an employer has not asked the questions; they now know the answers.

As well as the obvious illegal questions you have the possibility of discrimination taking place based on something you may have said on Facebook.

Suppose you have mentioned on Facebook you are your spouse are heading to a particular church function; which instantly tells your employer your religious beliefs. You may have spoke to a friend on Facebook about a medical condition; which means a potential employer could discriminate against you based on that information.

You are covered by various laws that are in place to supposedly stop discrimination. These are:
  • Title VII of the Civil Rights Act of 1964 - which prohibits employment discrimination based on race, color, religion, sex, or national origin.
  • Americans with Disabilities Act (ADA) - which prohibits discrimination in the workplace based on a person's physical disabilities, including a prohibition against pre-employment questioning about the disability.
  • Older Workers Benefit Protection Act - which forbids questions about a person's age and other factors.
  • Pregnancy Discrimination Act (PDA) - which prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions.
  • Family and Medical Leave Act (FMLA) - which prohibits discrimination against pregnant women and parents who take leave from their employment responsibilities to care for a newborn baby, sick child, or aging parent.
All of the discrimination laws are thrown out of the window once a potential employer has trawled through your Facebook account.

But what if you are at an interview and the interviewer asks for your Facebook login details?

You could refuse and quote the 4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

You could lie and say that you have no Facebook account. Although why should you?

Plainly what you do on Facebook is none of their business. It makes no difference to them. You have the right to voice opinions without the possibility of discrimination because of your opinions; this is the 1st Amendment.

But if you decline to reveal your Facebook information, and you do not get the job, how do you go about proving that it was based on your denial? That is the $64,000 question. Unless in the interview the interviewer says that the denial could harm your possibility of employment proving that the denial was any part of the decision making is going to be pretty difficult.

Your best bet is going to be to politely refuse and then ask what they hope to know from your Facebook account that they cannot ask you face to face. Yes; people lie in interviews but employers know that and if the lie concerns your suitability for the job they have the right to terminate your employment.

So if you are asked about your Facebook details, or any other social networking details for that matter, politely refuse but also ask why. Asking why could be your only evidence if you feel you get discriminated against because of denying them access.

Note: None of this post should be considered legal advice. If you feel you have a legal matter regarding employment discrimination consulting a reputable attorney should be your first course of action.

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