Contributed by Julie Proscia
Back in the pre-digital day, employers checked up on potential employees by picking up the telephone (gasp-no not even a cell phone) and speaking with another real live individual. The controversy with this method revolved around what “not eligible for reemployment” really meant (by the way it means do NOT hire the person). Now prospective employers rarely call references but instead run digital background checks, surf the Internet and monitor LinkedIn and Facebook sites to ascertain who their potential new hire really is. There is an ever increasing number of employers that require applicants and employees to “friend” them on Facebook or turn over social media passwords, and this is causing a storm of controversy and sparking legislation in an attempt to safeguard privacy rights.
Illinois is one of a number of states that is struggling to respond to this dichotomy – the right to know versus too much knowledge. Currently pending, and on a Third Reading in the Illinois House, is an amendment to the Right to Privacy in the Workplace Act. The amendment would make it unlawful for any employer to ask any prospective employee to provide any username, password or other related account information in order to gain access to a social networking site where that prospective employee maintains an account or profile. The amendment would not reduce an employer’s right to promulgate and enforce lawful workplace policies regarding electronic communications and social media. If passed it may make the question, “friend me” just as illegal as “what religion are you?”
While the internet is a wonderful tool for knowledge, particularly on such philosophical issues as “is the Mango really the most popular fruit?” it is also a door into the secret life of not only your employees but also your applicants. It gives prospective employers the opportunity to peek behind the curtain and see what or who the individual really is. While individuals’ resumes may state that they are hardworking and dedicated, their Facebook pages could reveal that last Saturday they had a lampshade on their head and a beer in their hand. The separation between the public and private is a question of boundaries – that is not easy. On one hand there is a legitimate argument that if a person puts information out for the world to see, it is fair game – on the other, there is the equally legitimate idea that whatever happens after 5:00 p.m. is personal time. This is the delicate balance that courts are just beginning to battle and that Illinois is examining.
Whether or not the legislation passes will only be the beginning of this debate. Stay tuned for more details. In the mean time, friend me, I am the attorney with the lamp shade on the left…