Employer Use of Facebook and Online Social Networks to Discriminate against Applicants for Employment and Employees: An Analysis Balancing the Risks of Having a Facebook Account and the Need for Protective Legislation

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Introduction

As technology advances, our use of computers, tablets, mobile phones, and smart phones continues to grow at an astounding rate. These advances also helped Facebook and other online social networks grow at a tremendous pace over the past decade. The growth of online social networks such as Facebook has brought about unforeseen changes in multiple facets of society affecting the legal rights of its users. Countless plaintiffs are filing lawsuits where Facebook acted as the medium in which the disputed problem or event arose. The twist to these lawsuits is nothing more than the fact the information is posted online. One recurring issue in these lawsuits is the privacy boundary which third parties, such as employers, may cross to obtain any personal information a user chooses to entrust to a social network like Facebook.

If a user chooses to post the information publicly on Facebook that is his or her choice. Yet, there have been many situations where employers have requested or even required applicants for employment or employees to provide their username and password to the online social networks to which they belonged. Some situations also involve employers asking an applicant or employee to log in to their Facebook account to allow the employer to search through that account. Even worse, some employers have refused to hire an applicant or disciplined or discharged employees, based on a refusal to supply the information.

First, this paper will focus on Facebook's creation, growth, and how prevalent it is in our society today. Then, this paper will discuss the privacy (or lack of) which Facebook offers users. Next, the discussion will center on how employers have used Facebook: (1) to screen applicants before they are interviewed,1 (2) as part of the interview process by asking applicants to disclose their personal Facebook login information,2 and (3) how employers have used Facebook as grounds to terminate employees for speech posted on Facebook about their job3 or supervisors.4 Then, this paper will focus on current and proposed legislation that is intended to protect the privacy rights of the applicant or employee by prohibiting employers from asking for any personal online social network account information. Finally, it will discuss the extent to which each user is responsible for preventing unwanted people, especially employers, from viewing their private information.

I. Facebook's Prevalence in Our Society and UnderstandingYour Facebook Privacy

Could you imagine having an employer ask to view your entire Facebook account? All your personal photo albums, conversations, and interests would be accessible to someone who might be the last person you would want with that information. For some people, this is equivalent to allowing a stranger to conduct an interview in your house, while you confide your secrets and show them your family pictures of the good times, and the bad. Since Facebook allowed public searches in 2006, some employers have used Facebook to screen applicants for jobs. Sometimes this has even cost the user an interview.5 Employers not only screen applicants but have also used Facebook to monitor employees' speech and activities.6 An employee's speech on Facebook has led to termination after the employee spoke negatively about customers at her job.7 Another frustrated employee was terminated for communication on Facebook to another employee speaking harshly about a supervisor.8 Numerous lawsuits arose where an employee claims they were wrongfully terminated from an activity arising from an employee's Facebook account that an employer may have disliked.9 Facebook and its prevalence in our society has created a need for protective legislation in today's employment arena to protect online social media10 users in the future from employers."

A. Facebook and Online Social Networks

Facebook and online social networks have experienced exponential growth this past decade. …