Social Media Intrusions Violate Employee Privacy

For years now employers have incrementally imposed themselves into the private lives and behaviors of employees.

The motives are largely around money. Labor is the single largest expense for many industries. It costs a lot of money to recruit, hire, train, insure, and replace a worker. And increasingly, the beyond-the-walls personal conduct of workers, such as posting patient pictures and information on social media sites, is becoming more of an issue because employers can be held liable.

It's been a gray area. For example, a growing number of companies, including healthcare organizations, refuse to hire people who use tobacco, a legal product. This has been justified in the name of productivity, health insurance costs, and patient safety. Job candidates are tested for traces of nicotine in their urine to prove their innocence.

When do the legitimate concerns of employers verifying the claims of job applicants and employees crash against the privacy wall of those same people?

That question was answered recently when the Associated Press reported that job applicants at some companies were being asked by potential employers to provide passwords to their accounts on Twitter, Facebook, and other social media. For anyone looking for a bright line of demarcation in the privacy rights debate, this is it.

"It's a gross intrusion upon the privacy rights of job applicants and employees," says Paul Stephens, director of policy and advocacy with San Diego, CA-based Privacy Rights Clearinghouse.

"People using social networking sites have become accustomed to the concept of granularity, that is the idea that they can choose who will see the information they can post. That is why there are public and private portions of profiles and the ability to restrict which friends see which portions of various posting. Individuals have come to have that expectation that they can control what they post. What you are seeing here is a runaround that defeats the whole purpose of the granularity that social networks are providing to their users," he says.

So far, reports have been anecdotal. It's not clear how widespread a problem this has become. Chris Conley, a technology and civil liberties policy attorney with American Civil Liberties Union of Northern California, says action needs to be taken to ensure the practice does not become more prevalent.

"Let's hope this does not become a trend and we in the ACLU will be working with various alternatives to make sure that people don't have to reveal their private lives as a condition of being even considered for a job," he says. "We don't think information should be any more or less private simply because it is placed online. Letters you have in a shoe box at home or the emails on your laptop have an expectation of privacy and legal protection. No one would dream of having access to those. It should be the same for Facebook."

There is much that is wrong with demanding access to social media accounts. 

For starters, what are employers looking for? What constitutes "objectionable behavior" on a Facebook page that would nix a job applicant's prospects? Would it be evidence of illegal drug use, criminal conduct or other egregious failings? Or would it be evidence of sexual orientation, age, or religious or political affiliations? Who defines what is objectionable?

And it is hard to imagine that such an invasion of personal rights would be universally applied to all job applicants or employees. Is the CEO candidate being asked to hand over the keys to her Facebook account, or is it just the folks applying for a job on the custodial staff?

"It's an unfortunate side effect of the fact that the job market is so tight right now, that individuals in many situations are willing to surrender their privacy and other rights in an attempt to secure employment," Stephens says.

Such violations might be tolerated in the short term when jobs are scarce, but those employees will justifiably bolt at the first opportunity. It would not be surprising to learn that companies that engage in this behavior also suffer high turnover and lack of employee engagement, and fail to see the linkage.

Finally, it's really not very effective. There is nothing to stop a job applicant from erasing from their social media accounts everything that might be deemed offensive or controversial. "That doesn't make the practice any less harmful," Stephens says. "Essentially, what is the employer gaining if the employee prior to providing the information can essentially sterilize or bleach their profile?"

So far there are no reports that healthcare organizations are engaging in this conduct. However, healthcare employs more than 14 million people and there are unquestionably huge consequences for providers who hire the wrong people. In this era of draconian HIPAA penalties, healthcare organizations are understandably sensitive to the implications of social media.

For anyone thinking about asking that job applicant across the desk for their Facebook password, don't do it.

The nominal information about that person you may glean from a social media site is of no value when it's compared with the damage inflicted on that essentially powerless person's sense of dignity. And even if they're "lucky" enough to get hired, it will be impossible to ask for their loyalty and trust after you've failed to extend it to them.