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Aug. 31 2009 - 8:43 am | 432 views | 1 recommendation | 6 comments

Should it be illegal for employers to check job applicants’ Facebook profiles?

kashmir being bad on Facebook

Actual alcohol-abusing photo of author on Facebook. 'Oh nos. Don't fire me.'

Earlier this month, InsideFacebook reported a study from CareerBuilder in which 45% of employers admitted to perusing applicants’ “social pages” during the hiring process. That includes Facebook, Twitter, LinkedIn, and personal blogs, among other sites.

It’s not particularly surprising that half of all employers do online due diligence before hiring. It’s part of the process of judging would-be employees, like looking at resumes, running credit checks, and conducting interviews. What’s surprising is that the percentage has doubled since last year, when 22% of companies said they did this. It seems like Facebook-stalking prospective employers is becoming standard practice.

What’s even more surprising is that a whopping 35% of managers admitted to not offering jobs based on what they found on those social pages, reported the New York Times. Most of the time, employers are put off by photos involving nudity, drink, and drugs, writes privacy expert Daniel Solove at Concurring Opinions. Jeez, managers, chillax. Drugs are one thing, but you’ve never been in an embarassing photo that involved drinking and getting naked?

In the case of credit checks, employers  are legally required to let applicants know if they find something that discouraged them from hiring a person. In his book on The Future of Reputation, Solove suggests that the same practice should apply to Facebook checks.

“There are no guidelines for this now,” said Solove — a law professor at The George Washington University –during a recent interview. “A lot of employers are acting incredibly irresponsibly. Sometimes they’ll have a student working for them get around an applicant’s privacy settings to look at their Facebook page. Maybe that should be illegal.”

Candidates should have the chance to correct the record if there’s something inaccurate online. And we should respect each other’s privacy settings.

But not all legal types respect Facebook privacy. The Florida Bar Examiners, the group that decides who gets to become a lawyer in Florida, is considering forcing some wannabe lawyers to be subjected to a thorough social networking investigation prior to their being knighted esquires.

The Board of Bar Examiners did adopt the policy that investigation of social networking Web sites should be conducted for the following bar applicants:

• Applicants who are required to establish rehabilitation under Rule 3-13 “so as to ascertain whether they displayed any malice or ill feeling towards those who were compelled to bring about the proceeding leading to the need to establish rehabilitation;”

• Applicants with a history of substance abuse/dependence “so as to ascertain whether they discussed or posted photographs of any recent substance abuse;”

• Applicants with “significant candor concerns” including not telling the truth on employment applications or resumes;

• Applicants with a history of unlicensed practice of law (UPL) allegations;

• Applicants who have worked as a certified legal intern, reported self-employment in a legal field, or reported employment as an attorney pending admission “to ensure that these applicants are not holding themselves out as attorneys;”

• Applicants who have positively responded to Item 27 of the bar application disclosing “involvement in an organization advocating the overthrow of a government in the United States to find out if they are still involved in any related activities.”

via On Facebook? FBBE may be planning a visit.

I’m a bit creeped out, but also impressed, by how thorough my home state wants to be in vetting its lawyers. I’m also intensely curious as to what they expect to find on a Bar applicant’s Facebook page that reveals an intent to overthrow a government in the United States. I suppose it would be unwise for would-be lawyers to become Facebook fans of Anarchy.

But the question I pose in the title of this post is one we need to think about. Should it be illegal for employers to find ways around Facebook privacy settings to check out prospective employees’ pages? Should employers have to alert applicants if they found something online that convinced them not to hire a person?

Regular readers know I’m usually in support of the erosion of privacy. I think employers should do their best to fully investigate new employees, but transparency needs to go both ways. Employers should be required to let an applicant know if their Facebook allegiance to Anarchy is the reason they didn’t get the job.


4 T/S Member Comments Called Out, 6 Total Comments
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  1. collapse expand

    While I am a strong proponent of privacy protection, I have absolutely no qualms about employers utilizing Facebook in their hiring decisions. Having a Facebook account is voluntary, you have complete control over what you choose to post, which groups your affiliated with are also within your control. If you choose to post your private life in a public forum, I think you have to expect the public to view it, including potential employers.

    An employer is allowed to discriminate based on virtually any criteria that is within the control of the applicant. It’s legal to discriminate against someone based on the color or cut of a suit, on a choice of car, on the font on a resume, style of a handshake – in other words, on a multitude of things that will have little or no bearing on how well they could do the job. Why should how that person presents him- or herself on Facebook be afforded special consideration?

  2. collapse expand

    Simple. Just deactivate your account when job hunting.

  3. collapse expand

    Ms. Hill,

    Both Lineargirl and Beerzie make excellent points. However beyond those, as a practical matter, how would one go about banning the use of Facebook &c? There is no way either from legal or technical perspective to make such a ban effective nor is there way to detect a breach of this rule. In any event, putting a foolish thing on one’s facebook is no different than wearing a “Party Naked” tee-shirt and bringing a six pack of beer to a job interview, you are free to do it but don’t be surprised if you don’t get the job.

  4. collapse expand

    As I said in the post, I don’t think it should be illegal. I do think employers should be required to let applicants know if they found something that led them not to hire the applicants. This requirement would be similar to the credit check regulation.

    • collapse expand

      Ms. Hill,

      Have your really thought that through? Do you really think someone should pass a law that requires potential employers to tell every applicant why they were not hired? Even if you did, do you really think that any potential employer would say “Gee, you were a great candidate but we hated your Facebook entries so we did not offer you the job?”. Not in this world.

      In response to another comment. See in context »
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    About Me

    I am a writer, reporter, editor and blogger. I'm an editor at Above The Law, where I blog about lawyers, judges, law firms and the legal industry. Here at True/Slant, I write about our changing notions of privacy.

    If you have story ideas or tips, e-mail me at kashhill@trueslant.com. I've hung out in quite a few newsrooms over the last few years. Currently, I can be found in Breaking Media's Nolita office. In the past, I've been found in midtown Manhattan at The Week Magazine, in Hong Kong at the International Herald Tribune, and in D.C. at the National Press Foundation and the Washington Examiner.

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      While most of my writing occurs online at Above The Law and True/Slant, I do occasionally venture into the world of print.  These are some of the magazines and newspapers that I’ve written for:

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