FTC Clears Employers to Check Facebook Profiles of Potential Employees

You knew this day was coming.  We’ve known that for several years, employers have been scouring the web looking for embarrassing or illegal activities that would disqualify job applicants.  Now, things you post on your Facebook profile are completely fair game for employers.  I’m not sure why the FTC was called in, to be honest, because it seems as though looking at things that are made public online shouldn’t necessitate government approval.  Maybe it’s the fact that investigatory companies store the information they find for seven years.  Don’t get me wrong, I’m not a big fan of all this snooping that companies can do, particularly when it involves looking at your pictures to see if your personal activities mesh with the corporate culture.  It’s not as though I don’t want people who are stupid enough to post pictures of them engaging in illegal activities to suffer the consequences, but it’s a question of where the line is drawn.  What is an activity that is disqualifying?  What’s the difference between pictures of a candidate doing shots at a nightclub in Ibiza versus another holding a glass of wine at a vineyard in Napa?  Both activities involve lots of drinking (which isn’t illegal in most cases), but one of them is subjectively “classier,” such that it could be easy for the employer to choose one over the other.

I’m torn, though, because it’s discrimination based on stereotypes, but isn’t necessarily illegal.  There is a line that employers cannot cross which is drawn at race, gender, religion, national origin, and in some places sexual orientation.  There’s nothing in the law about drinking habits.  I’m not saying there needs to be, either–the nation has a jumbled enough system of laws relating to alcohol for that to be added.  I’m just saying that it’s bothersome to me somewhere deep down in the irrational parts of my brain that companies get to peek into your social network profiles to make hiring decisions.   Even if the information is filtered through a background checking company, there’s still something missing.

I think it’s because, although you control what goes up on your page, you don’t control the context in which people see the content.  A picture of me doing a kegstand tells you one thing, but the context that it’s a one-time ironic stunt or a root beer keg is probably lost on the low-level drone charged with viewing thousands of pictures looking for juicy information.  The company says that it will notify users that adverse decisions were made based on their social media profile, allowing them the chance to remove offending content, but I guess it’s up to the company to decide whether they want to give applicants the chance to appeal.  I imagine that giant monolithic companies don’t want to bother with the extra time and energy needed allow every applicant to appeal so that is unlikely to provide much comfort.

But what about the generational differences between people who have grown up connected to the Internet and those who still view it as a fancy typewriter hooked up to a “series of tubes” ?  I know I’ve seen a it crop up in places where even people my age just don’t understand social media the same way children, teens and even college-age adults see it.  I don’t want to swing this back into another rant on privacy, so I’ll just wrap things up with this closing thought:  if employers and others are going to judge people based on their social media profiles, the companies who offer those services need to provide substantially greater and easier to use privacy controls or risk turning the Internet into a giant LinkedIn wasteland.

About Justin Kwong

An attorney in the Twin Cities and adjunct professor at William Mitchell College of Law where I teach a seminar on the law of virtual worlds.
This entry was posted in Privacy, Rights and Civil Liberties, Social Networks and tagged , , , , , , , , , , , , . Bookmark the permalink.

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