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Get Out of My Face(book)! When Pre-Employment Screening Goes Too Far

To wit, the job application form for government positions in the city of Bozeman Montana desultorily requested information on all websites and social networking sites used by an applicant, as if asking for something as pedestrian as the date of the application. Folks got pretty riled up about it. The city finally stopped the practice in 2009, and in doing so said something interesting:

"The extent of our request for a candidate's password, user name, or other internet information appears to have exceeded that which is acceptable to our community. We appreciate the concern many citizens have expressed regarding this practice and apologize for the negative impact this issue is having on the City of Bozeman."

In Bozeman, the city fathers stopped the practice neither because it was illegal under federal or state law, nor because it was immoral or intrusive, but rather because it was unacceptable to the community. Presumably, it was hurting the city, both in terms of general public relations as well as in deterring job applications. Reportedly, several sheriff's and corrections departments in places as disparate as Virginia, Illinois, and Maryland also ask questions along the same lines.

In response, legislation to prevent such intrusive practices has been introduced in some states. Recently, Facebook itself made it plain that giving out one's password to a third-party was against company policy, and that it would take legal action if necessary to enforce that policy. And, in the past few days, U.S. Senators Charles Schumer (D-NY) and Richard Blumenthal (D-CT) asked the Justice Department to investigate, in particular to determine, whether or not the practice violates the existing federal Computer Fraud and Abuse Act.

The reactions to date are indicative of something most people feel instinctively---that this practice is downright skeevy. It is unduly intrusive, perhaps coercive.

Maybe if there were five jobs for every applicant it wouldn't feel so coercive. But when there are 50 applicants for every job, it feels downright extortionate. The reaction also indicates something more subtle: Right now, people aren't quite sure whether the practice is blatantly illegal or not, but if it's not, they sure want it to be. In the usual morass of federal and state regulation of employment practices, there are plenty of things that employers are not permitted to investigate, such as religious beliefs, matters of race and sexual preference, and age. These categories are "protected" because they involve fundamental civil rights as provided for in the Constitution.
Outside of those protected categories, employers have pretty broad latitude in terms of what they can ask or investigate about a particular job applicant. They can't ask you where you go to church, but they can ask you what restaurants you like. They can ask you where you shop for shoes, or if you like soccer more than basketball, or if you swear frequently, or even a long series of Monty Python-like idiotic questions, like "what is your favorite color?" Actually they probably could legally ask you for most everything they might find out from your Facebook account. Employers don't do that, and never have, probably because before the advent of social networking sites it would take a great deal of time and effort to verify all of the answers to those questions. So the digital world does for intrusive employers exactly what it does for everyone else (in particular, divorce lawyers)--for better or for worse, it makes finding information very quick and easy.

I am fairly optimistic that there will be appropriate legislation on a federal level to curtail this practice, but having observed Congress for several decades, I'm just not convinced that it will occur in my lifetime.

It may not be as simple as banning the asking of those kinds of questions, probably by creating a new protected category relating to the "expectation of privacy" based on the Fourth Amendment to the Constitution. Furthermore, as is the case with legislation dealing with employers checking the credit reports of job seekers, there may be some exceptions to a general rule. Most folks would agree that an employer hiring someone to handle money probably should be able to find out how he or she has met their obligations in the past, by checking his or her credit report. Similarly, I believe employers should have significant latitude in the case of people looking for jobs in the national security or intelligence area. Because of considerations such as these (as well as legislative gridlock in Washington generally), it may be years before there is a clear federal statute protecting us against employers looking to crawl onto our Facebook pages or into our e-mail accounts.

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