Legal issue
Social media sites have become part of people’s lives today, and they feed all their personal information to this media site. However, what people do not know is that putting personal information on the social media sites is becoming risky and dangerous every day because employers are using this site to profile a personal behavior and conduct before they agree to hire them into their companies (Brunty, Helenek & Miller, 2013). Social media has become unavoidable as people are using these sites to search for work and employment. However, employers have started asking job applicants for passwords of their social media sites and there is a question as to whether it is legal or illegal.
Employers are asking for log in the social media networks for potential employees or people whom they intend to hire. However, this issue has raised many controversies as to whether they are legal or illegal. Facebook, for instance, is not considered private because people share their personal information on the social media. However, when people choose who are to be their friends on social media and for that, the reason is said to be private. This is the same reason the logins are private, and only a person can access them. Therefore, it is not right for employers to review people’s social media accounts. Reason being all people should be offered equal employment opportunities without discrimination. The legal issue is whether the employers have the right to check posts on social media accounts of interviewees
Legal Rule
There has been congressional concern over this issue of employers seeking personal information while conducting interviews. The department of justice has been requested by the congress to conduct investigations into whether the practice of asking for log INS in the social media violates any federal laws. However, it was established that this sought of act depended on whether the employer is a private or government business. The role of the congress is to protect the privacy of employees from being violated by their employers or people who have intentions of hiring them.
Employers by looking at the social media they determine the religious affiliation of the interviewee, the social background among other private information indicated in the social media. This information is private and is only intended for the viewing by friends who have been accepted by the person to view or read related posts written by the page owner. This means that the information is not intended for any other person who has not been invited or accepted to see those posts. According to a congressional representative, it is vital for a person to choose what personal information they want to put on their social pages. Reason being they need to protect themselves from the public, especially there would be employers as they have all the power to determine whether or not to give a person a job.
Analysis of the legal issue
The number of people seeking jobs through the social media has increased over the years as they're much of the competition when it comes to work as the number of unemployment rate increases each day. Therefore, knowing that job applicants are desperate people are sought to give in to the employer demand of requesting for the password that is ethically and legally wrong. Reason being the constitution provides for the right to privacy this right extends to the social media, and other personal information fed into a personal computer.
The reason the issue of log in job interviews is controversial is because employers are required by the law to do a background check on the potential employee before they decide to hire them. Therefore, some people say that by asking for the log ins they just want to do a background check on the employee and his or her relations with the social media. However, in the case of an interview the interviewee is compelled to give out the log ins without their consent, which is wrong because every person is entitled to privacy even in social media where most people do not view it as private.
Social media is where people write all their personal information, including their race, sex, marital status and religious affiliation. Therefore, when employees have access to all this information, they get to judge a person even before they hire the person. This is wrong because the law does not allow employers to discriminate job seekers based on their age, sex, or tribe or even religious affiliations (Perritt, 2013). Issues such as antidiscrimination groups are found in the social media and the employer after noticing that an interviewee is a member of such groups may deny his or her employment. This action, if taken by the employer would amount to discrimination, which is not permissible under employment laws of the United States.
The Stored Communications Act prohibits employers from using and accessing information stored electronically in computers. When employers access this information without authorization from the owner of the information or computer, then they are in violation of federal laws, as well as the SCA. Maryland becomes the first state to prohibit employers from asking job applicants to provide passwords for their social media pages. Job applicant was also prohibited from handing over passwords to their potential employers. The bill that was brought to the forward prohibits both private and public sectors from requesting applicants and employees, their s names or passwords for any social media sites that they are affiliated with on the internet.
One of the social media site managers weighed in on the subject, stating that employers who sought or requested job applicants for passwords on social media sites were violating their personal privacy rights. In addition, to this he added that soliciting or sharing passwords violated social network statements of rights and responsibilities that states, that a person shall not share their password or let any person access the persons account that would amount to jeopardizing the security of the account. Facebook, for instance, has sought the help of the law to protect its users form such employers. It has been held that employers who will be found conducting themselves in this manner during a job interview will be subject to civil liability.
The senate bill 52211 now prohibits employers from asking for log in for social media sites, both on the interview and the work. The senate and the House of Representatives unanimously banning all employers from the both private and public sectors passed the new law. The law further bans employers from befriending potential employees on the social media in order to gain access to their accounts and profiles. The employers are also prohibited from shoulder surfing or demanding passwords from job applicants (Bondarouk & Olivas-Lujan, 2013). However, the bill has few exceptions where access may be granted to the employer, but not the actual password is given out. Secondly, when making a factual determination while conducting an investigation the purpose of the research must be related to the misconduct of the employee or in cases where it is, determined that an employee may be leaking confidential information about the company. However, the Act does not apply to internal social networks. Oregon is also another state that has come up with laws to prohibit employers from asking for passwords. However, their law extends to colleges where they have banned colleges from asking passwords from their students.
Employers found in violation of the proposed Senate bill will be in liable for a fine of $500 and legal fees. The federal government is considering adopting such a law to ensure that people are also protected at the federal level. However, there is an exception to the bill where public postings and profiles are not applicable under this law. Federal and State courts across the country state that social media postings are considered protected speech under the United States constitution. The National Labor Relations Board (NLRB) stated that it is illegal to put into practice overarching social media rules if the organization’s policies discourage workers from speaking to one another about rigorous activities or mutual aid. This means that employers cannot terminate an employee for posting views on the social media sites.
Employers are permitted by the law to access information that is publicly available but cannot go further than that. However, there has been an issue with the insufficiency of enough protection settings available in the social media sites that ensure that the employers do not view the job applicant profile. The enactment of the Social Media Protection Law ensures that the information and the password of the job applicant are protected from the eyes of the employer. The employers in case of violation are subject to civil liability. However, critics of the enacted law say that the enactment of the password protection legislation was unnecessary, as it was a rewrite of the United States.
The bill does not; however, carve out for any exceptions, especially when it comes to employer owned or paid devices. In cases where a person is working the employee profile that he or she uses to display the employer’s copyrights, trademarks or other intellectual properties. Lastly, profiles that the employer provides the employee with significant assistance and resources to develop and maintain. Employers argue that having access to the employees or job applicant’s passwords, they will be protecting the intellectual property of the business.
Employers check out job applicants on social media outlets the same way job seekers check out time. However, legal constraints such as discrimination claims where the employer might refuse to hire a person if they view their profile they believe in something that the company or employer does not believe in, this is a form of discrimination on the part of the employer to the employee. The employer may get such information from the social media after demanding a password from the applicant. The post an applicant might have posted may cost them their job. For example, a person may write that they are pregnant, their political views or ethnicity. If the employer uses such information to deny a person a job opportunity then this can be seen as an act of discrimination.
Privacy laws state that a person should enable privacy settings on their social media accounts to protect themselves from employers during job seeking. However, if these settings are not enabled and the employer accesses, or reads a post that is offensive or see photos that are provocative the employer can use such information and no action can be taken on him or her (Newson, Houghton & Patten, 2009). However, if measures are taken to ensure that this does not happen, and the employers use the information against the employee or job applicant the employers can be found guilty in a court of law.
States in the United States have decided to Join Maryland in making or enacting legislation that will protect both job seekers, and employees from vicious employers who will request for their passwords, or other personal information that may jeopardize their job or their chances for being in employment. The Legislations made by the states have protected student in public universities and colleges from being asked for access to their personal social networking sites.
Employers can no longer discriminate their employee or job applicants based on the information they find on the social media reason being the State and federal laws protect them. All congressmen have worked together to ensure that they protect their citizens from employers who feel the need to discriminate people based on their views. Employers who fear antidiscrimination laws find it hard to accept a job applicant who is affiliated with groups that fight discrimination on work places.
The law provides that no employer should force or apply for logins or passwords from prospective employees. Any employer found in violation of these laws should be held to be in violation of both federal and state laws. Therefore, employers should be careful about what information they request from their applicants or they may suffer the consequence of a lawsuit that would amount to employers paying hefty fines and legal fees.
Conclusion
Providing passwords or logins for the employer during an interview is illegal, and such employers are not entertained by the law for their behavior. Reason being when employers are allowed to look at job applicants profile they might end up finding something that may not please them and they will end up discriminating the employee for that or denying them a job opportunity. For example, in a case related to passwords the court established that an employer does not have the right to take any action in the case of opinions written by the employee on a social media concerning work.
Therefore, employees or job applicants should also be careful on what they post on the social media sites or what pictures they post on those sites too. Reason being the law does not protect public information relayed on the social sites and if the employer gets a hold of the information the employee or job applicant cannot bring a suit against the employee. For that reason, privacy settings for all people should be activated to ensure that their employer or there would be employers do access information they have written on the social media sites. By so doing, they will be protected from people who want to use their personal opinions and views to deny them employment.
References
Bondarouk, T., & Olivas-Lujan, M. R. (2013). Social media in human resources management. Bingley, U.K: Emerald.
Brunty, J., Helenek, K., & Miller, L. (2013). Social media investigation for law enforcement. Cincinnati, Ohio: Anderson.
Newson, A., Houghton, D., & Patten, J. (2009). Blogging and other social media: Exploiting the technology and protecting the enterprise. Farnham, England: Gower.
Perritt, J. H. H. (2013). Employment law update 2013. S.l.: Kluwer Law International.
