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Asking job applicants for Facebook password, fair or legal?

March 20, 2012|By Michelle Maltais

Remember the good old days when all you had to worry about was what potential employers might find in a Google search? Now, some employers are asking for the keys to job applicants’ virtual clubhouse so they can click around and get a better look.

Reports are resurfacing about public agencies requiring applicants to allow them to log in for full access to their Facebook account.

Is this in-depth social network profiling of a potential employee fair -- or legal?

“I would argue that it's an invasion of privacy and violation of anti-discrimination law,” said employment attorney Amy Semmel of Kelley Semmel in Los Angeles.

If you think about what gets posted on social networks, the average profile can be overflowing with information that could be used to construct a fairly detailed sketch of a job applicant, which can differ greatly from the image that applicant would like to project to a potential employer.

In addition, it’s a potential human resources hazard for employers, lawyers advise. Applicant profiles likely contain details that are off-limits in the hiring process: ethnicity, nationality, sexuality, religion and pre-existing medical conditions.

Questions are being raised about the legality of such social network profile scouring, which is the focus of proposed legislation in Maryland and Illinois to ban public agencies from seeking access to social networks.

Federal law already provides some guidelines. Employers may use sites such as Twitter and Facebook for background checks if, for instance, the site is publicly accessible, if the employer doesn’t create an alias to get the information or if the employer doesn’t use the information gleaned in discriminatory ways.

Semmel also pointed out that it’s not just a violation of the applicant’s privacy. “I’d argue that it poses a very serious concern” for every friend attached to that person.

Ultimately, the practice of even asking for your password violates the terms of service for Facebook. But those terms carry questionable legal weight, and experts say the legality of asking for such information remains fuzzy.

Entering a social networking site in violation of the terms of service, however, is regarded by the Department of Justice as a federal crime. During recent congressional testimony, though, the agency said such violations would not be prosecuted.

Lori Andrews, a law professor at IIT Chicago-Kent College of Law specializing in Internet privacy, is concerned about the pressure placed on applicants, even if they voluntarily provide access to social sites.

“Volunteering is coercion if you need a job,” Andrews said.

The Associated Press contributed to this report.

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Original source: Asking job applicants for Facebook password, fair or legal?

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