Should Cyber-Screening by Employers Be Legislated?

Posted by Molly DiBiancaOn March 6, 2012In: Background Checks, Hiring, Social Media in the Workplace

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Employers have been cyber-screening job candidates for years now. Although reports vary on how many of the nation's employers are Googling applicants, officially or unofficially. But the practice is a reality.

What also is a reality is the many variations of cyber-screening that exist. On the most moderate end of the spectrum are employers who have instituted a legally defensible practice, as I've written about previously. On the most extreme and unsavory end are employers who require applicants to turn over passwords and log-in informaiton for their social-networking accounts. Bozeman, Montana was the first employer to make the news for this practice; Maryland's Department of Corrections was the most recent.

Many employment lawyers, including me, strongly object to this practice on numerous grounds, not the least of which is the fact that it violates the terms of service of the social-networking sites. And now, it seems, that there may be some politicians who feel the same way.

Law.com reports that a California legislator has introduced a bill that would protect employers who don't cyber-screen job applicants. And bills are pending in Maryland and Illinois that would prohibit employers from asking applicants for log-in information for social-networking sites. The Maryland law is likely a result of the negative publicity the State received after news broke that the Department of Corrections was requiring applicants to turn over their password and log-in information.

So, will these laws be the wave of the future? Perhaps. Are they necessary? Not really. Or at least they shouldn't be. The terms of service for social-networking sites, such as Facebook, prohibit this type of activity in the first instance. But, as long as stories like the one from the Maryland Department of Corrections keep making the headlines, laws like the ones currently pending may continue to appear in state legislatures.

Want to know the right way to cyber-screen applicants? Check out these articles:
Screening Job Applicants with Facebook: Part 1, Part 2, and Part 3.

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