(Solved): 1. Do you think a persons social media posts are job relevant? Why or why not?2. If during ...

Want This Job? Provide Your Facebook Username and Password: The Cases of Justin Bassett and Robert Collins Brett Gaul Background During a 2012 job interview, Justin Bassett, a New York City statistician, was asked to provide his Facebook username and password. While Bassett had expected to be asked the usual interview questions about his experience and references, he was taken aback by the unusual request to give the interviewer his Facebook login credentials. Rather than allow the interviewer to log in to his account, Bassent refused to comply with the interviewer's request and withdrew his application." The case of Justin Bassett called attention to what had until then been a little-known practice. Prior to 2012 few people had heard of employers asking job applicants for their login credentials so that the employers could access a job applicant's private posts as part of a background check. The Bassett case was not the first of its kind, but because many people were unaware that some employers were asking job applicants for this information, the Bassett case circulated quickly on the internet. Some of the news stories about Bassett also referred to the case of Robert Collins, a Corrections Officer with the Maryland Department of Public Safety and Correctional Services. In 2010 Collins was returning to his job after he took a leave of absence following his mother's death. During a reinstatement interview, Collins was also asked for his Facebook login and password. "'I did not want to do it, but because I really needed my job and he [the interviewer] implied that this was a condition of recertification, I reluctantly gave him the password, " Collins said. \( { }^{2} \) When Collins asked the interviewer why he was logging on to his private account, he replied, '' 1 am looking through your messages, on your wall and in your photos to make sure you are not a gang member or have any gang affiliation. \( { }^{\text {tw3 }} \). After his experience, Collins contacted the American Civil Liberties Union (ACLU) of Maryland. The ACLU of Maryland expressed concerns about the Division of Correction's ' Doog Gross, "ACLU: Facebook Password Isn't Your Boss' Business." CNN (2012): \( { }^{2} \) Foid. \( { }^{3} \) Porid. requirement that job applicants and current employees seeking recertification provide their social media account usernames and passwords for background checks, In 2012 Maryland became the first state in the nation to prohibit employers from "requesting or requiring that an employee or applicant diselose any username, password, or other means for accessing a personal account or service through certain electronic communication devices" as a condition of employment. \( { }^{4} \) Other states soon followed Maryland's lead and also outlawed this practice. According to the National Conference of State Legislatures, 25 states now have social media privacy laws that apply to employers.' Federal social media privacy bills have also been introduced in each United States Congress since 2012, but no bill gained enough support to become a law. \( { }^{6} \) Analysis The cases of Justin Bassett and Robert Collins raise serious privacy concerns. According to the Pew Research Center, as of 2017 almost 70 percent of Americans use social media, up from 5 percent in 2005. \( { }^{7} \) Social media allows us to stay immediately connected with more people than at any previous time in human history. It also allows us to share personal thoughts, emotions, pictures, and information easily and instantly with those to whom we are connected. But is the information job applicants and employees post on social media-to put it in the words of George G. Brenkert - "job relevant"? \( e^{k} \) What right do employers have to view one's private social media activity on sites like Facebook? In states where asking for a job applicant's social media credentials has been outlawed, employers obviously have no Iegal right to make viewing a job applicant's private social media activity a condition of employment, But do employers have a moral right to view one's private social media activity? Even if employers do not have a moral right to view \( { }^{4} 2012 \) Regular Session - Chapter 23 (Senate Bill 433\( )(2012) \). htpp/imgaleg maryland gov/201 2rwichapters noln Ch_233_sb0433T, poff. "National Conference of State Legislators. "State Social Media Privacy Laws." May 5, 2017. social-media-asernames-and-paswords aspe. "In 2012, daring the 112" Congress, H.R. 5684, the Password Protection Act of 2012, failed to become a law. In 2013, during the \( 113^{\text {"1 }} \) Congress, H.R. 2077, the Password Protection Act of 2013 , failed to become a law. In 2015. during the \( 114^{\prime \prime} \) Coberese. H.R. 2277, the Password Protection Act of 2015, failed to tecome a law. See htips:/www. govtrack wa/, 'Pew Research Center. "Social Media Fact Sheet. "(2017). hutpi/ www pewinternet.ergefact-sheetisociatmedia 'See Brenkert's 1981 article "Privacy, Polygraphs and Work' in Businees and Profesvianal Eetice Jourmal 1: pp. 19-35. The phrase first appears on p. 24. Although Brenkert wrote this piece well befose the advent of social media, his insights into employee privacy are still relevant. one's private social media activity, is it still prudent to ask for access to it anyway? To better understand this practice, it is helpful to consider it from the perspective of both employers and job applicants. Employers may want to view a job applicant's social media activity because employing uncthical people is ethically, legally, financially, and socially risky. Uncthical employees can get employers in trouble with the law, cost them money in legal fees and lost business, and be bad for an employer's reputation. Brenkert argues that the information to which the employer qua employer is entitled about the (prospective) employee is that information which regards his possible acceptable performance of the services for which he might be hired" - i.e. "job-relevant" information. \( { }^{3} \) Conversely, employers qua employers are not entitled to know information that is not "job relevant." Ho However, Brenkert also argues that not only must a person have the ability to do a certain job. "but he must also be able to do it in an acceptable mannet-i.e, in a manner which is approximately as efficient as othen, in an honest manner, and in a manner compatible with others who seck to provide the services for which they were hired. Thus, not simply one's abilities to do a certain job are relevant, but also aspects of one's social and moral character are pertinent."11 Employers may argue that viewing applicants' social media activity better enables them to determine applicants" abilities and character because social media activity provides evidence of who people really are. By vicwing applicants' social media activity, employers may also see evidence of uncthical of illegal activities that could lead them not to hire particular applicants and thus minimize risk. From an employer's perspective, then, where it is allowed by law, the practice of asking for a job applicant's secial media credentials may be considered part of a thorough background check. However, from the perspective of job applicants, the request to turn over their social media credentials may be viewed as a violation of privacy. According to Brenkert, -[t]o say that something is rightfully private is to say that \( A \) may withhold from or not share something. \( X \), with Z. Thus to know whether some information, \( \mathrm{X} \), about a person or institution, \( \mathrm{A} \), is, or ought to be, treated as rightfully private, we must ask about the relationship in which \( \mathrm{A} \) stands to \( \mathrm{Z} \), another person or institution."12 Employers may be thought to have no moral right to access one's private toldis at p. 24. it goid. at p 25. is Rois. social media accounts because social media activity is not "job relevant" and there is no relationship between the job applicant and the potential employer that justifies employer access to these accounts. Employers might like to know a great many things about their job applicants, but job applicants have the right to keep private information that is irrelevant to their ability to do the job. From this perspective, then, an employer's desire to know something does not outweigh a job applicant's interest in keeping certain kinds of information private. Whether or not an employer asks job applicants for their private social media login credentials, many employers use publicly available webpages to sereen applicants. According to a 2017 survey of more than 2,300 hiring managers and human resouree professionals conducted by CareerBuilder, "70 percent of employers use social media to screen candidates before hiring, up significantly from 60 percent last year [2016] and 11 percent in \( 2006,{ }^{+13} \) Additionally, 30 percent of employers have personnel dedicated to researching candidates on social media \( { }^{14} \) It is easy to focus on social media activity that employers might use as a reason not to hire a particular job applicant; however, the survey's results also indicate, perhaps surprisingly, that certain kinds of social media activity can actually help a candidate land a job. According to the survey's results, "more than 44 percent of employers have found content on a social networking site that caused them to hire the candidate. Among the primary reasons employers hired a candidate based on their social networking site were: candidate's background information supported their professional qualifications (38 percent), great communication skills ( 37 percent), a professional image ( 36 percent), and ereativity (35 percent). "-13 However, even though 44 percent of employers found social media content that led them to hire a candidate, a higher percentage of employers, 54 percent, reported finding content on social media that led them not to hire a candidate. \( { }^{16} \) Key content that counted against a candidate included: - Provocative or inappropriate photographs, videos or information (39 percent). - Information about them drinking or using drugs ( 38 percent). - Discriminatory comments related to race, gender or religion (32 percent). s "Number of Employers Usiag Social Media to Sereen Candidates at All-Time High, Finds Latest CarecrBailder Study," CIS1ON PR Newswire \( (2017) \), http \( / \) www.penewswire comminews-relezes number-ofemployers-asing-social-media-to-screen-candidates-at-all-time-high-finds-latest-careerbuilder-study300474228, html. " Lauren Salm, "70\% of Errployers Are Soooping Candidates' Social Media Profiles., (2017). hteps:1iwww.careerbailder.comadvice inecial - media-survey-2017. \( { }^{13} \) Ibid. "Roid. 4 - Bad-mouthing their previous company or fellow employee (30 pereent). - Lies about qualifications (27 percent). - Poor communication skills ( 27 percent). - Criminal behavior ( 26 percent). - Sharing confidential information from previous employers ( 23 percent). - Unprofessional sereen name (22 percent). - Lies about an absence ( 17 percent). - Posting too frequently (17 percent). According to the CareerBuilder survey, in addition to using social media sites, 69 percent of employers are also using online search engines to research candidates. "Key content employers search for include "information that supports their qualifications for the job (6I percent), if the candidate has a professional online persona ( 50 percent), what other people are posting about the candidates (37 percent) and for a reason not to hire a candidate ( 24 percent). \( { }^{-19} \) Even though viewing candidates' public and private social media activity and using online search engines can provide employers with useful information about candidates, using these tools can also be risky for employens themselves. For example, employers may leam details about applicants such as their age, race, national origin, color, religion, and whether they are disabled of pregnant. Under federal law, such details are protected and legally cannot be used in making hiring decisions. According to employment attorney Doug Hass, "Once an employer knows this information, it can't unlearn it, and it can be accused of making a hiring decision based on that information. \( { }^{-120} \) For this reason, hiring managers must we social media and scarch engine results very carefully. Employees must also use social media very carefully. Because many employees are at-will employees who can be fired at any time for any legal reason, they can easily be fired for social media activity that violates their employers' standards or that their employers find objectionable. But what about these employees' First Amendment right to freedom of speech? Generally speaking, the First Amendment right to freedom of speech means that people have the right to \( { }^{17} \) Ibid "Ibid. \( { }^{19} \mathrm{CISION} \) PR Newswire, "Number of Employes Using Social Mefia to Screen Cantidates at All-Time High, Finds Litest CareetBulder Study." \( { }^{" A} \) Alexia Elejalde-Ruir, "Using Social Mediu wo Disqualify lob Candidute ls Ridy." Chicatgo Trituse 5 express themselves without fear of government interference or punishment. Put another way, just because employees have freedom of speech that does not mean that their private sector employers cannot fire them for their speech. Freedom of speech protects individuals from consequences with the government; it does not protect them from consequences from their employers. News stories of employees being fired for their social media usage are not unusual. For example, in June 2016, Christine McMullen Lindgren, a Bank of America employee in Atlanta, Georgia, was fired after posting racist remarks on Facebook. \( { }^{21} \) More recently, in October 2017 , CBS fired Hayley Geftman-Gold, a vice president and senior legal counsel at CBS in New York, for insensitive comments she posted on Facebook after a deadly mass shooting in Las Vegas, Nevada. Geftman-Gold wrote, "If they wouldn't do anything when children were murdered I have no hope that Repugs will ever do the right thing. I'm actually not even sympathetic be country music fans often are Republican gun toters."22 Although Geftman-Gold deleted and apologized for what she herself called an "indefensible post," those 35 words on Facebook had quickly damaged her career. \( { }^{23} \) For better or for worse, social media usage seems here to stay. Given its pervasiveness, employers will continue to be interested in viewing the social media activity of both job applicants and employees. For job applicants, employees, and employers, though, social media has the potential to help and the potential to harm. In the years since Robert Collins was asked to provide his Facebook credentials to keep his job with the Maryland Department of Public Safety and Correctional Services, it has been states, not the federal government, that have taken the lead in delineating social media user's legal rights to privacy. Twenty-five states have enacted social media privacy laws that prohibit employers from making access to private social media accounts a condition of employment. This is significant because outside of federally protected class status, laws in certain states which protect employees from retaliation for expressing their political views, and protections granted by the National Labor Relations Act which preserve the rights of employees to conduct conversations about the terms and conditions of their employment, "Emie Suggs, "Bank of America Fires Employee Over Racist Facebook Ranti." The Atlanta JournalConstitution (2016): bitt: ://www, ajecon-newsbank-america-fires-employee-over-racist-facebookrant/O7.Wwb0F F \( { }^{22} \) Brian Flood, 'CBS Fires Vice President Who Said Vegas Victims Didn't Deserve Sympathy Because Country Music Fans 'Often Are Republican.'" Fax News (2017): hatp://www. foxnews.comventertainment/2017/10.02/top-cbs-lawyer-no-sympathy-for-vegas-vics-probablyrepublicans hitml. \( { }^{2} \) Ibid 6