By Nicole Davis Tinkham, Esq & Eric Brown, Esq. .of Collins Collins Muir & Stewatt LLP
Well we’ve had a chance to go over what you submitted, and your references check out. You’re on the short list for the position in Purchasing. I only have three more questions. How many married people, exactly, have you had secret crushes on? (Don’t include celebrities.) Did it affect your college GPA when your sexual preferences switched back that second time? And your last eight election votes seem rather inconsistent, don’t you think?
Not that long ago, when people used diaries to expose their secrets to no one but themselves, employers did not ask that a candidate bring his or her diary to an interview and allow the interviewer to peruse it as a condition of employment. And if an employer had such a rule, that employer would probably have been vilified and forced, through the social networks of the time (word of mouth, newspaper articles, television coverage), to change its policy. Now, the California Legislature and Congress are moving to squash a similar policy in the modern era.
In recent times, some employers have been demanding that interviewees provide their passwords to social media site Facebook as a condition of employment. Such coercion by the employer raises several distinct issues.
First, under the Labor Code, California employers are absolutely prohibited from interfering with employees’ rights to associate in order to discuss the terms and conditions of their employment; when such association goes beyond mere griping, it is known as “protected concerted activity.” The prohibition extends to any surveillance of protected concerted activity by the employer, or even the appearance of surveillance. Demanding Facebook passwords may have the appearance of targeting protected concerted activity.
Second, even if there are no discussions of protected concerted activity for the employer to review, looking at the private Facebook page can still raise employment issues. No one (we hope) would actually ask the questions in the mock interview conversation at the beginning of this article. However, if an interviewer did choose to ask questions about what it found on the interviewee’s Facebook page, those questions could come back to haunt the employer. Questions which may seem, at worst, rude but still legal, become riskier when they are about the sometimes deeply-personal information on a Facebook page. Hidden (or not so hidden) pitfalls for religious discrimination, sex and sexual orientation discrimination, voting rights intimidation, and other civil rights issues may be raised by such questions.
Third, an employer that views the public portions of an applicant’s Facebook page may be exposed itself to potential claims. For example, if the employer decided not to hire a female applicant for legitimate reasons (i.e., a lack of qualifications), but had conducted online research and discovered that the female applicant was pregnant before making the decision not to hire, the female applicant could bring a claim for sexual discrimination alleging that she was not hired due to her pregnancy. While the claim may be unfounded, the employer will still incur the cost of defending itself. Therefore, even seemingly benign research regarding an applicant could expose the employer to potential claims, and safeguards should be put in place to document the legal bases for not hiring an applicant.
Seeing such issues on the horizon, on May 10, 2012 the California State Assembly passed AB 1844 in a 73-0 vote. “I am proud to have received this overwhelming show of support for the protection of our privacy rights,” said Assemblymember Nora Campos, who introduced the bill. It will now head to the state senate. Meanwhile, at the national level, identical password protection bills were introduced last Wednesday, May 9th, in both the House and Senate. Known as the Password Protection Act of 2012, the legislation will prevent any employer from demanding or coercing a current or prospective employee from providing access to his or her social media account as a condition of employment.
If you have any questions regarding password protection issues, please do not hesitate to contact any of our Labor and Employment attorneys at Collins Collins Muir + Stewart.
Please contact us at either the South Pasadena or Orange offices to discuss further.
Nothing contained within this article should be considered the rendering of legal advice. Anyone who reads this article should always consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.