Social networking technology and employers

By Legal Eagle

Deckard: Replicants are like any other machine. They’re either a benefit or a hazard. If they’re a benefit, it’s not my problem.

Bladerunner, 1982

Very much the same thing could be said about social networking technology as about replicants. The technology can have both positive and negative ramifications.

A few times over the last week, I’ve read articles talking of the virtue of social networking technology (Facebook, Twitter, MySpace, LinkedIn) for job seekers. Social networking websites are supposed to be the new way to get your skills and profile out there. But, like a Bladerunner, as a lawyer, I’m not concerned so much with the positive ramifications as the negative ones for job seekers.

This post has been sparked by a post at home cooked theory which involved the author’s students discussing the demands made of them in job interviews:

…for me, the most disturbing revelation came in tutorials, when students started talking about how many employers are now asking for print-outs of Facebook profiles from job applicants. It sounded particularly common in entertainment and service industries, even though I detected some were suggesting it was commonplace in corporate interviews as well–that it should be taken for granted if you were looking to work for a significant firm.

(Big hat-tip to Mark at LP for alerting me to this post)

Now, the first question with a social networking site is whether your profile is public or private. If your profile is public, then it’s very important to be aware that a prospective employer may well have accessed it in any case, simply by putting your name into a search engine. As I have outlined in a previous post, these days there are actually companies out there who specialise in finding out whether employees have said anything critical of an employer in social networking sites. Legally speaking, then insofar as the available information is relevant to the skills and abilities required by the employer, the employer can take that information into account. Of course, an employer might use a Facebook profile to discriminate against an applicant in relation to qualities which are not related to the skills and abilities needed for the job, but it would be very difficult for an applicant prove it, unless the employer had been particularly stupid and openly said as much.

I’ll repeat what I’ve said before: it’s as well to be very careful in making personal information available online. If you wouldn’t say or do a particular thing in front of your boss or prospective boss, I’d recommend you don’t put it online.

But what of an employer demanding a print out of a privately accessible Facebook page which is ordinarily only accessible to friends of the applicant? To my mind, employers have no legal right whatsoever to demand Facebook profiles.

Unfortunately, the Privacy Act is no bloody use in this situation at all. I’ve never had much time for it – as far as I’m concerned, its main effect for me has been to create an excuse for companies to be obstructionist (eg, when you need to do something for a family member who is ill or overseas and they refuse to help you “because of the Privacy Act”. Grrr.) It’s these kind of situations which make me think that we should have a tort of invasion of privacy (as suggested by the ALRC last year). As yet, there’s no coherent common law tort of invasion of privacy, and it remains to be seen whether a statutory tort will be created.

Of course, general anti-discrimination law protects job applicants to an extent. Under anti-discrimination law, employers have to focus on the applicant’s skills and abilities to determine their merit in meeting the inherent requirements of the job. They are not allowed to discriminate on the basis of matters which are irrelevant to the inherent requirements of the job. Nor are they allowed to question applicants about issues such as sexuality, religion or disability if it is irrelevant to the requirements of the job.

If a person refuses to disclose a private Facebook profile to a potential employer, they are perfectly within their rights to do so. The problem is that they then might miss out on the job. I can see a situation where, for example, a person might be a member of a Facebook group which disclosed that they had a mental illness. If they refused to disclose their private profile, and did not get the job as a result, I think there is a very strong argument that they have been indirectly discriminated against, and that the employer’s conduct is illegal.

However, if an employer used a profile to discriminate against an applicant on the basis of something not covered by the anti-discrimination Acts, then there would be not much which could be done.

In comments to the post, Mel gave the example of an actor was trying out for a role which involved playing a conservative character, and the casting agents saw that the person was more of a partying type in their public Facebook profile. This is not the kind of discrimination which is prohibited by law, although it may be short-sighted and pathetic (surely the point of hiring an actor should be that he or she can act in whatever way is necessary).

The question was also raised about employers requiring employees to communicate with clients and colleagues via Facebook. As noted at the beginning of this post, social networking technology has benefits and detriments. Certainly, I think it could be positive for employees and for employers. But if employers start sanitising or supervising private social interactive forums too much, then they will turn people off using them, and the benefit will be lost. If Facebook becomes a haunt of businesses touting their wares and happy shiny employees shouting the praises of their employers, I won’t use it any more.

The law has not really kept up with technology or with these kinds of situations, which is unsurprising really. Law operates slowly and tends to be reactive (responding to a problem rather than anticipating it).

In addition, having a law preventing certain conduct is one thing, but actually proving the contravening conduct is quite another (whether it be breaches of the anti-discrimination Acts or the Privacy Act). I am fascinated not only with the form of the law itself, but the question of whether laws actually work effectively in practice, and whether people can use them or easily prove contraventions. I still think that some kind of individual breach of privacy action is the best option.

Update

Facebook is being sued by users who claim that it has led to breaches of privacy.

Update II

Just got sent an e-mail which shows the dangers of mixing work and private lives. The employee had obviously accepted her boss as her friend…and therein lies the start of her self-inflicted troubles (image courtesy of DigiWeb):

33 Comments

  1. Posted August 18, 2009 at 4:05 pm | Permalink

    I don’t have any social networking present online because I think it’s like a voluntary tracking device. The distinction between different spheres of life, not just private/public but different parts of private/public as well, is important to me. It’s not my clients’ business who I bonk, what films I see, how I dress, what I think of Kevin Rudd or if I follow football.

    In a job situation this can change. Particularly in large firms which appear to me to reselmble minuature police states more all the time.

    Unfortunately the culture moves the other way. Lots of people ‘in the industry’ think my reluctance to launch a Facebook profile is akin to insisting on wearing thongs in a corporate boardroom. They simply don’t understand the idea of private life. This was foreshadowed by various Net enthusiasts in publications such as Wired who declared that privacy was dead (thanks for consulting me) and get over it.

    an excuse for companies to be obstructionist

    Yeah? You don’t think governments write laws for us do you? 🙂

  2. Helen
    Posted August 18, 2009 at 5:49 pm | Permalink

    Meh. Go into Facebook, change your profile to what would better suit the employer (I don’t mean lie, I mean omit the all night goat orgies), print it out, change it all back again.

  3. Posted August 18, 2009 at 6:16 pm | Permalink

    There was an even worse case – Bozeman, a City in Montana USA, that wanted all prospective employees to hand over their passwords to all social networking sites before being employed.

    Notes here.

    Mind you, I’d be sorely tempted for the greater good to give up my ability to have stuff “private and confidential” IFF companies/governments couldn’t mark any documents “in confidence”…. all documents becoming public and googlable.

  4. Sinclair Davidson
    Posted August 18, 2009 at 6:24 pm | Permalink

    Unless, of course, the all-night goat orgies help get you get the job. 🙂

  5. Posted August 18, 2009 at 6:40 pm | Permalink

    that wanted all prospective employees to hand over their passwords to all social networking sites before being employed.

    Interestig how many uses for the phrase ‘fuck off’ there are.

  6. Jacques Chester
    Posted August 18, 2009 at 6:45 pm | Permalink

    I still think that some kind of individual breach of privacy action is the best option.

    The even better option is to realise that the company you are applying for is letting idiots into management and/or HR.

    Really. When HR gets any kind of independent autonomy, this is the kind of crap they cook up.

    In almost every big company I’ve ever seen, HR is a sheltered workshop for those control freaks who were too stupid or socially inept to make it in ‘real’ management.

  7. Sinclair Davidson
    Posted August 18, 2009 at 8:14 pm | Permalink

    Yup – what Jacques said!

  8. Posted August 19, 2009 at 6:44 am | Permalink

    This isn’t the first time employers ignore the law as a deliberate part of their hiring practice, it is just yet another way to identify those potential employees most likely to bend over and accept putting company interests before personal ones.

    Back in the distant past I had an interview in Brisbane the morning after a woman got a big settlement because the employer demanded to know whether she was going to have children or not – in direct contradiction to the law at the time.

    It had been all over the evening news, it was all over the morning papers.

    Guess what the third question he asked me was?

  9. Posted August 19, 2009 at 6:24 pm | Permalink

    In almost every big company I’ve ever seen, HR is a sheltered workshop for those control freaks who were too stupid or socially inept to make it in ‘real’ management.

    Alright Jacques we’ve know where you live and we;’re gonna make your life Hell. We aren’t stupid or socially inept…
    .
    We’re pure Evil
    .
    (Laughter echoes off the walls of a medieval castle)

  10. Posted August 19, 2009 at 6:35 pm | Permalink

    Actually Human Resources is the plan of the (secret) 5th Communist International. If we can’t get you one way we’ll get you another.

  11. Posted August 19, 2009 at 7:13 pm | Permalink

    I agree completely with Adrien’s comments.

    I’ve always found the “unintended consequences” of social networking to be a particularly fertile discourse to enter into.

    Examples like this only serve to highlight that the best way to control content which employers might try to access, or think they have a right to access, is to limit the creation of that content.

    Whatever unreasonable, unethical or illegal practices employers might try to engage in — ultimate responsibility for one’s reputation, including their online reputation, must rest in the hands of the individual alone.

    That said, where employers use such probing methods to try and assess aspects of a person which aren’t even a proper part of their ‘reputation’, such as disability, marital status, parental status, etc, then proper remedies must exist.

  12. Posted August 19, 2009 at 9:10 pm | Permalink

    Catbert (@12) is obviously an imposter. The REAL catbert is thoroughly private enterprise – or illegitimately privatized work as agency of government – NEVER a true marxist initiative.

    However, I have a contrary example that might be valid… assessing computer literacy if relevant to the job, and if a job that requires some understanding of privacy issues, how much implementation of privacy is evident. This does NOT involve assessment of the actual words and/or pictures on the social networking site.

    The other possible thing is comparing the previous position in the CV with how much activity during work hours is evident (unless it’s got a facebook “by mobile” indicator suggesting a phone was used on the bog).

    This is a guide to social networking and privacy of facebook by ars technica.

    And One Reason NOT to friend your boss on facebook is a ripper. From BusinessPundit

  13. Posted August 20, 2009 at 11:14 am | Permalink

    Trackback:

    http://larvatusprodeo.net/2009/08/20/facebook-social-media-subjectivity-and-workplace-privacy/

  14. Posted August 20, 2009 at 5:51 pm | Permalink

    Dave Bath – That’s it pal. It’s never ending workplace health and safety seminars for you. 🙂

  15. Posted August 20, 2009 at 7:19 pm | Permalink

    If this is a genuine trend, not an overblown myth perpetuated by excitable PR and HR and Gen-Whiner people, it will make it dramatically easier and quicker to cull down the list of organisations that still maintain some modicum of professionalism and still have workplace cultures that don’t induce tears and foaming at the mouth from normally quite sane, happy grown ups.

    Imagine the time we’ll all save when looking for employment.

  16. John Greenfield
    Posted August 20, 2009 at 11:46 pm | Permalink

    OMG. I am so with the employer here. Who would want such a clueless retard working for them? The dopey bint is better of working at KFC. Though if she is English working class or underclass, she’ll get knocked up and the state will reward her with a flat!

  17. ummyasmin
    Posted August 21, 2009 at 5:57 am | Permalink

    My BIL suggested that like email accoutns, a person should keep two Facebook profiles. One that is a ‘work’ one, and one that is a home/friends one. Yes, you can adjust privacy levels etc. but that is a pain in the neck, given how many different pages you have to navigate to set appropriate privacy levels.

  18. Jim
    Posted August 21, 2009 at 2:47 pm | Permalink

    The employer jumped the gun here. I’ve seen plenty of Facebook updates that were not written by the person who owns the account. Leave your browser open and unattended for 30 seconds and a mischievous friend (or enemy) can wreak havoc.

  19. Posted August 21, 2009 at 5:53 pm | Permalink

    L.E – that “update II” – classic!

    Not only demonstrates – for the idiots who truly don’t get it – why “social networking” on the interwebs and the world of real work should never ever meet, but also that the world is full of idiot workers who have no appreciation for concepts such as “work”, or “competence”, and so on and so forth. I’m actually rather partial to the notion that the latter engenders the former.

    Taking this at face value, ie, as genuine incident, his online response is restrained, courteous, appropriate. Millions of other managers must be drooling with envy.

  20. Posted August 21, 2009 at 5:54 pm | Permalink

    Jim – mostly “not” …. it’s much like people claiming “I didn’t get your email” … err, yeah, right-o.

  21. Jim
    Posted August 21, 2009 at 7:32 pm | Permalink

    Well, I’ve seen an epidemic of this Facebook “drive-by” status update lately. It’s usually mobile phones that are the vehicle; somebody gets up to go to the toilet, leaves their phone behind, and a friend(!) does the damage. Usually it’s obvious that the “voice” is different, but it does make you lose faith in the veracity of status updates. The classic is the big “come out of the closet” status update; perhaps all this shows the immature homophobic nature of too many of my friends.

  22. Posted August 21, 2009 at 8:06 pm | Permalink

    Jim – indeed, fair point.

    Might be rather less the homophobia, more the puerile.

    Sounds much the equivalent of kiddies passing notes in primary school, in the days of yor: “Jane loves Charlie” … just to be a stirrer.

    It’s the nature of social networking – unless shared only with actual friends – vapid, trite, unsophisticated, at best. At worst, well, as per L.E’s most recent post.

    My skepticism re: “it wasn’t me” content comes via celeutards, such as Lindsay Lohan, who a little too frequently claims that “someone” hacked her Twitter account. The claim is invariably made (along with lots of faux “mad as hell with that hacker” tweets), after she’s posted some really dumb arsed thing over which she is publicly pillared.

  23. Adrien
    Posted August 22, 2009 at 12:10 pm | Permalink

    LE – ‘You’re gay’ isn’t necessarily a homophobic jibe. It can mean ‘naff’.

  24. Posted August 22, 2009 at 3:53 pm | Permalink

    “I’d continue to be very careful to log out before leaving my phone unattended. I’d trust my friends, but what if someone stole my mobile?”

    I’d be more worried about friends than some idiot who’d steal a mobile.

    re employee example about – employee doesn’t realise he’s gay – after 5 months he doesn’t realise she’s an idiot until facebook snafu.

    If it’s genuine I’d say they are about even so far.

  25. Posted August 23, 2009 at 11:18 am | Permalink

    Another angle on this Facebook CV stuff is that if employers are now going to be looking for you on Facebook n’ stuff to see if they wanna hire you then doesn’t that create all sorts of opportunties to defraud?

  26. Posted August 23, 2009 at 11:33 am | Permalink

    Francis – you’re making an assumption that being gay entails displaying overt – read: neon sign – signifier of one’s gayness, including during work hours.

    Most gay men working in office jobs don’t prance, preen or wander about with limp wrists, as already noted by the manager in this instance – he doesn’t queen around.

    L.E – these days, very often, saying that someone is “so gay” is playful, not insulting, but generally in adult age groups, say, twenties upwards. For youth, the “gay” tag is still used as the worst possible insult. A bit unimaginative, isn’t it.

  27. Posted August 23, 2009 at 2:33 pm | Permalink

    [email protected]: adult age groups, twenties upwards? No.. for me at nearly 50, “gay” is associated with
    * the Flintstones (ending “we’ll have a gay old time”)
    * those yummy “Golden Gaytime” icecreams
    * using (or overusing) something enjoyable extremely liberally, as in “gay abandon”
    * friends called “Gay(e|lene)”

    Wonder how those baby naming stats are going these days.

  28. Posted August 23, 2009 at 9:04 pm | Permalink

    caz – fair suck of the sav – I’m not making that assumption at all about a prancing camp boss. It was based on her alleging,so it seemed, that he was coming on to her.

    I know a few mincing old queens but they are surely a rare and endangered species these days. The gays I work with are all a bit ordinary with mortgages, hangovers and hangups like everyone else. Jeez some of them even want to get married.

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  1. By Mid-semester break : home cooked theory on September 25, 2009 at 9:14 am

    […] in the workplace, which drew on the material mentioned here a few weeks ago. Thanks to Mark and Legal Eagle for the background that helped get some of that message […]

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