Pre-Employment Screening and Social Networking: a Legal and Ethical Analysis

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Pre-Employment Screening and Social Networking: A Legal and Ethical Analysis Currently, state and federal lawmakers are playing catch up in the battle of privacy and technology when it comes to private life in the public online environment. The Associated Press called nationwide attention to the subject when it published a report on an incident in 2011 in which an employer had required password access to an applicant's Facebook account. As law suits associated with Facebook password requests and employee surveillance arise, legislators are scrambling to introduce regulations and legislation to protect employees. In April 2012, the Social Networking Online Protection Act, or SNOPA, was introduced in Congress by Representative Eliot Engel of New York and Representative Jan Schakowsky of Illinois. If passed, SNOPA would "prohibit current or potential employers from requiring a username, password or other access to online content” according the Engel’s website (“Rep. Engel Seeks to Protect Personal Online Content”, 2012). SNOPA would also prohibit employers, schools, and universities from demanding such access in order to discipline, discriminate or deny employment, or punish them for refusing to volunteer the information. The rapid growth of social media has outpaced the courts and legislation. Information that individuals post onto social networking websites such as Facebook and MySpace is being used by a growing number of recruiters, employers, and potential employers to seek additional information on the after-work behavior of employees and applicants. Organizational and human resource management practices have not kept pace with the changing use and abuse of social networking websites used for job searches, background checks and employee surveillance. Managers and business owners are more frequently turning to internet searches and social networking to investigate employees and prospective employees, potentially turning up more personal information than they should legally have knowledge of, opening the door for discrimination liabilities. Hypothetical Scenario

In January 2011, Emily Smith applied for the position of receptionist at Acme Corporation. After three interviews with the company, Ms. Smith was offered a contingent offer of employment, pending a background screening. Acme’s background screening consent form described the screening to include a criminal history check, credit check, drug and alcohol screening, and educational credential verifications. Ms. Smith signed the offer letter and accompanying consent forms for the background check, after resigning her current employment position and giving her employer two weeks’ notice. On February 2, Ms. Smith arrived at the Acme office to meet with her hiring manager and submit the new hire paperwork. During the meeting in the office of Acme manager, he inquired about Ms. Smith’s Facebook profile. He explained that he had searched for her on the social networking website. Her privacy settings were adjusted so that the profile and its contents were not visible to the general public—only to “friends” that she approved access for. The Acme manager requested that Ms. Smith provide her Facebook account log in credentials so that he could access her account. Ms. Smith declined to comply citing that it is her personal profile for sharing information with friends and family and in no way applicable to her professional life. The manager then requested that Ms. Smith “accept his friend request” on Facebook to gain access to her Facebook wall, Friends List and networks, and photos. Ms. Smith declared that she believed that was an inappropriate request and politely refused. The manager let the conversation drop at that point, concluding their meeting. The day before Ms. Smith was scheduled to start her new position at Acme, the Acme human resources manager called to rescind the contingent employment offer. The human resources manager explained that because Ms. Smith refused to...
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