While there is talk among New Jersey companies about forcing job applicants to give access to their social media accounts, legal experts advise employers to avoid such requirements — and not just because they may present legal pitfalls.
Beyond legal, moral or ethical issues, the unintended consequences and chilling effects on business and employee relationships aren’t worth the risk, said John P. Quirke, a partner in the labor and employment law practice at Haddonfield-based law firm Archer & Greiner P.C.
“Even if ultimately — legally — companies can do this, it’s a horrible, horrible way to start an employment relationship, and I think that what companies will find over the course of time is they’re going to lose employees, or they’re going to lose qualified applicants, just because they have a policy of being able to ask,” Quirke said.
Asking job candidates for social media passwords or access to their private accounts exposes companies to the possibility of civil suits and legal penalties, New Jersey attorneys say. Once exposed to facts about national origin, religion, sexual orientation, or disabilities on a candidate’s Facebook or LinkedIn page, employers can’t undo their views, creating risks for companies.
“Whether they are considered or not by the potential employer, they are going to be in that field of knowledge of the employer, so then if the applicant is not hired, a potential for a claim of discrimination based on the employer having that knowledge goes up tenfold,” said Dena B. Calo, a partner and director of the human resources practice group at Newark law firm Genova, Burns, Giantomasi & Webster.
Even when prospective employees are turned down for valid reasons, individuals will find it easy to claim they were rejected not because of their qualifications, but based on legally protected categories, Calo said.
In recent days, privacy advocates and others have been calling for protection against what they consider invasions of privacy and violations of the expectations of privacy of information that’s not job-related in any respect, Calo said.
“I think it’s akin to saying, ‘Here’s the keys to my house, go in and snoop around because I want a job with you,'” Calo said.
Even when job candidates consent to provide Facebook or Twitter passwords, that exposes their friends and contacts on those platforms, none of whom have agreed to invasions by employers, Calo said.
“They could click through to other people’s profiles and get a whole wealth of information on other individuals,” Calo said.
News media hype has made the practice seem more pervasive than it actually is, but Calo said the risks to employers are real nonetheless.
Laws such as the federal Stored Communications Act of 1986 and the state’s equivalent statute, as well as labor law, provide applicants with some protections, legal professionals say, and federal lawmakers have been talking about enacting explicit restrictions, but have not yet passed new legislation.
In New Jersey, Assemblyman John J. Burzichelli (D-West Deptford) said the practice has been “creeping” into more widespread use by companies. Burzichelli has prepared a bill for consideration by the state Legislature that would bar employers, with some exceptions for law enforcement and the like, from demanding prospective and current employees provide social media user names and passwords or access to personal accounts, among other prohibitions.
Burzichelli said laws already exist about what can be asked, in general, of job applicants, but the area of social media isn’t completely covered yet.
“This is the law catching up with technology,” Burzichelli said.
Burzichelli hopes to get the bill to Gov. Chris Christie‘s desk by July 1. He acknowledged that fines considered in the draft provisions of the bill — $1,000 for the first offense by an employer and $2,500 for the second offense — could be less than effective in stopping the practice.
“We’re cognizant that, as the bill was drafted, that fine structure for some may be considered an acceptable cost of doing business, so just as the bill itself is being fine-tuned, when we go through the committee process we will also be looking at the fine structure,” Burzichelli said.
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