Interviewing in the Age of Social Media

Interviewing in the Age of Social Media

Between blogs, Facebook, Twitter, Instagram, and countless other social media platforms, just about everyone has a social media presence these days. Increasingly, employers are including social media reviews as part of their routine screening of potential employees. Employers know that social media accounts can be a window into someone’s values, attitudes, behaviors, interests, and even work, and so they are keen to access them. However, employers who review a candidate's (or employee's) social media should tread carefully.

Many individuals place privacy controls on their accounts, in part because they don’t want employers viewing them. As a result, some employers have started asking applicants to pull up their social media pages in front of them during the interview process. Some have even asked candidates to provide passwords and log-in information for their social media sites. In Illinois, such conduct is illegal.

Illinois residents are granted significant protections by the Right to Privacy in the Workplace Act (the “Act”). Among these are protections concerning personal social media accounts. Employers in Illinois, for example, are prohibited from demanding that candidates remove privacy controls from their social media accounts, show their accounts to an employer, or provide account passwords to an employer. To best ensure compliance with the Act, employers should steer clear of any questions related to social media during interviews.

Yet sometimes employers feel they have a legitimate need to request access to a candidate’s social media accounts. For instance, an employee hiring a media manager might want to view a sample of a candidate’s work. Nevertheless, employers may not demand access to an applicant’s or an employee’s personal social media accounts. When social media use is part of the job, employers should find other avenues for assessing a potential candidate’s proficiency with social media. Requesting the candidate present past work product would be acceptable. Another option is to ask the candidate to complete certain tasks on a dummy test account. If the employee volunteers a personal account as an example, it would be advisable for the employer to redirect the interview.

The Act further forbids employers from requiring that applicants or current employees add the employer to a social media group “affiliated with any personal online account” of applicants or employees. If an employer discovers that a potential new hire runs a neighborhood watch group on Facebook or a Pinterest page devoted to crocheting, that employer cannot demand access to those pages. Likewise, an employer cannot demand that an applicant or employee join an online account created by the employer, such as “following” the company’s Facebook business page or its Instagram account.

The Illinois Department of Labor is charged with enforcing the Act. If an employer takes an adverse employment action against applicants or employees who refuse to violate the Act, including refusing to hire a prospective employee or discriminating against a current employee, that employer can be held liable. Such employers will be subject to financial penalties, among others.

In addition to the Right to Privacy in the Workplace Act, many other laws can also be violated when an employer reviews an employee’s social media. State privacy laws, anti-discrimination protections, First Amendment free speech rights, and violations of the National Labor Relations Act have all come into play when employers reviewed social media accounts. In order to steer clear of potential lawsuits, it is best for an employer to stay away from social media.

If you are an employer who may have unknowingly violated the Act, or an employee or applicant whose rights may have been violated, contact our employment lawyers for help. The Prinz Law Firm has been representing employers and employees in Chicago for a decade, and we can do the same for you. Call us at (312) 212-4450 or contact us online to schedule a consultation.

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