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Wednesday, Oct 18, 2017
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Experts: Get used to employers seeking Facebook info

TAMPA - Zach Strickland uses Facebook to keep in touch with friends and promote his band, Love Me. But he would be furious if a job interviewer demanded access to his Facebook page in exchange for a job offer. "I'd consider that a clear violation of my privacy," Strickland said. "If they looked at something I posted two years ago and I didn't get a job because of it, I'd be pretty mad. How do they know it wasn't a joke?" Strickland may have to get used to it. Although Facebook users may see their pages as a private diary and none of their boss's business, employment law experts say Facebook videos, photos and posts are becoming fair game in reviewing some job applicants and investigating disputes among employees.
Even if Facebook users set their pages as "private," accessible only to select friends and family, those posts can prove pivotal as workers rise up the corporate ladder and companies are asking applicants to "friend" a hiring manager to view a private page. "This would be a case-by-case basis," said Otto Immel, a labor and employment lawyer with the Quarles & Brady law firm in Naples who has started counseling clients on when they should and shouldn't look at an employee's Facebook page. "Is this going to make sense for every entry-level position, no … but in the same way emails can come back to haunt people, this next generation on Facebook shouldn't consider their online communications as just for them." Among the first group of employees facing potential Facebook scrutiny are law enforcement officers and teachers. The Hillsborough County Sheriff's Office recently updated policies to specifically address social media sites. Everything is now on the table, said spokesman Larry McKinnon, including Facebook, LinkedIn, Myspace, Twitter and any other social media service. Rules prohibit sheriff's employees from posting anything about the department, or current or former employees, that's "obscene, defamatory, false, deceptive, misleading, profane, libelous, threatening, harassing, abusive, hateful, etc." Employees can't post photos of sheriff's vehicles and buildings or appear in photos wearing sheriff's logos. Anyone applying for a job will face an extensive background check that includes social media habits. If applicants appear upstanding, but a Facebook page reveals them throwing raucous parties, McKinnon said, "it can certainly lead to a person not getting hired." The Hillsborough County school district, the county's biggest employer, does not review applicants' Facebook pages before making a job offer, said spokesman Stephen Hegarty, but "we check Facebook and other social media if/when things are brought to our attention, such as an allegation that an employee might be using social media inappropriately." If a person has a private Facebook page, that could mean asking for access to it, Hegarty said, particularly if there was "evidence of wrongdoing." The issue is far from settled, and rules of who can do what with Facebook appear to be developing almost weekly. The American Civil Liberties Union formally opposes employers asking for passwords to social sites such as Facebook in interviews, reviews or in schools as inappropriate and a "violation of privacy." The Maryland Legislature recently passed a privacy bill that would prohibit employers from requiring employees or applicants to disclose usernames and passwords as a condition of employment. Plus, the bill prohibits employers from disciplining workers who refuse to provide access. The federal Stored Communications Act also prohibits access to electronic communications without a user's authorization. That authorization must be freely given. Some recent court cases found that employers asking for those log-ins were coercive. Another touchy point: managers who get around the issue of asking for a password. "An employer might require a job applicant to 'friend' the hiring manager, or actually log in to their Facebook account during the interview," said Peter Hall, an employment lawyer in the Atlanta office of Greenberg Traurig. It's a "complex area, both legally and factually." On one level, the debate hinges on where people perceive the line between their professional and personal life, and on which side of that line people want to place their Facebook page. With more than 800 million members, Facebook has become everything from personal scrapbook to debate venue to battleground in personal disputes that have nothing to do with a person's professional life. If a person re-posts or comments on a photo or article about something offensive, are they endorsing it? Does that reflect badly enough on their employer to constitute grounds for dismissal? One of the clearest cases in which a Facebook page can turn into a professional challenge is online harassment, said Immel, the Naples lawyer. "Say there's an allegation that one employee is harassing another by putting disparaging comments or pictures on their Facebook page," Immel said. "The HR director can go to the employee and say 'Something has come to our attention.' If the employee denies it, they can respond 'OK, come here right now, log on to Facebook and I want to see there's nothing there.' " If the employee declines, that can become evidence, Immel said. Although there are some First Amendment protections, if an employee breaks the law by disclosing confidential information on Facebook such as internal sales figures and refuses to cooperate in an investigation, "they may have to suffer the consequences." Companies, at the same time, need to be careful with how they handle Facebook, Immel said. Federal law prohibits employers from discriminating against applicants based on a long list of criteria, including race, health and marital status. If a person isn't picked for a job, a company is at risk of a lawsuit if they reviewed a Facebook page that revealed personal issues. High-level employees at a company should expect the highest level of scrutiny regarding social media sites. This is the rare case of a person going to the top of an organization, gaining access to closely guarded secrets and becoming the public face of a company. That means conducting a thorough background check, a credit review, and interviewing friends and neighbors, Immel said. Bill deMeza, an employment lawyer with Holland & Knight in Tampa, said employees in the private sector face a decision. "If you want a certain job," he said, "and know that you may have to give up a certain amount of personal privacy in the application process to get that job, you have a choice to make."

rmullins@tampatrib.com (813) 259-7919

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