Legally Speaking: How Should Your Recruiting or Staffing Agency Address Social Media Privacy Issues?

I’ve recently made my opinion on employer Facebook snooping quite clear – any the negative feeling I feel deep in my gut is shared by nearly every other source I’ve seen.  Fortunately – it seems this negative view is slowly being transformed into laws and guidelines.

The furor stems over the demands of some employers, recruiters or staffing agencies to get social media passwords or log-ins from employees or candidates.  At the heart of the matter is the question of whether employees or job candidates should be forced to allow potential employers, recruiters or staffing agencies more access into their private lives.  While current laws may still leave room for interpretation – it is perfectly clear which way the wind is blowing.

A recent Denver Business Journal article points out that in Colorado, employees’ legal off-duty activities are protected, and that could extend to Facebook use.

Two Senators apparently agree that forcing job seekers to share Facebook passwords is a breach of privacy and possible cause for discrimination.  Charles Schumer (NY) and Richard Blumenthal (CT) have asked U.S. Attorney General Eric Holder to launch an investigation into whether employers asking for passwords during interviews is in violation of federal law (New York Times, March 25, 2012).

In the article, a Facebook executive warned that “if an employer discovered that a job applicant is a member of a protected group, the employer might be vulnerable to claims of discrimination if it did not hire that person.”  Such protected information includes gender, age, religion and race – much of which you can find on Facebook profiles.

Today, only Maryland prohibits employers from requiring employees to turn over social media passwords.  However California currently has a bill before the Senate (having just won unanimous support in the House) which would also ban employers from demanding access to Facebook accounts (AB1844).

The challenge will be moving forward that with the interconnectedness of the Internet and the proliferation of information on social media, recruiting firms and staffing agencies will be tempted to use whatever tools they can to get a better idea of candidate personalities and profiles.

Case in point, many recruiting firms and staffing agencies rely upon LinkedIn as heavily as they do resumes to get a clearer picture of candidates.  However, the difference is, LinkedIn profiles have been created for that very reason.

The next year should produce an interesting array of new laws and regulations.  In the meantime, what actions should your recruiting firm or staffing agency take?

I say this not as a lawyer – but as someone that has worked in the staffing industry for several years.  While we may be tempted to take advantage of all information we are – currently – legally entitled to in order to find the right candidates, there are certain lines we simply should not cross.  While it may be true that asking for social passwords is not currently in violation of any laws in most states – the stain such an action leaves on an agency could be difficult to bounce back from.  This holds especially true if privacy laws change – and your agency’s actions are cited as even a minor reason as to why.

Bottom-line: employees and job candidates have private lives.  And as long as they fill your needs – or meet the needs of your clients – that’s OK.  My original position was to steer your agency clear of Facebook snooping stupidity.  And my opinion – now backed up by mounting legislation – has not changed.

To learn more about how your recruiting or staffing agency can best take advantage of social media – from both a business and ethical standpoint – and how our recruiting and staffing software can help, contact us or request a free demo.