Asking For Facebook Passwords Is Risky

News of job interviewers demanding Facebook passwords from applicants caused a media storm. Top news outlets published numerous reports about job applicants being asked to give their Facebook passwords to hiring managers during job interviews so the potential employer could inspect personal profiles on the applicants’ Facebook pages.

California employers should think twice about engaging in this practice during the recruiting and hiring process.

As discussed in CalChamber’s social media white paper (sign in required), peeking at an applicant’s Facebook page could reveal information to the person conducting the interview that the person is prohibited from asking about, such as religious affiliation or sexual orientation.  

What if the employer learns from the Facebook page that the applicant is pregnant? The employer now opens itself up to a discrimination lawsuit if the employer does not hire the applicant. The applicant may argue that the reason she was not hired was because the employer learned she was pregnant from her Facebook profile and discriminated against her. Further, an individual’s privacy rights under the California Constitution may be violated.

Facebook Chief Privacy Officer Erin Egan issued a statement warning that Facebook may take action against employers who demand passwords. “We’ll take action to protect the privacy and security of our users, whether by engaging policymakers, or, where appropriate, by initiating legal action … ,” Egan said, citing concerns that the demands violate Facebook’s terms of service. 

Two U.S. Senators asked the federal Equal Employment Opportunity Commission and the U.S. Department of Justice to investigate whether the practice of demanding passwords violates federal laws. See the full letter. 

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

CalChamber members can check out the HR Library’s social media pages on HRCalifornia.com (sign in required).

The on-demand version of our Technology and the Workplace webinar is available for purchase. The webinar covers policy suggestions on social media in the workplace, privacy concerns and the current status of social media claims before the National Labor Relations Board.   

Not a member? Our Making Sense of Social Media in the Workplace white paper is available as a free download (registration required).

Flurry of Employment Bills Signed Over the Weekend

California Gov. Jerry Brown had until midnight October 9, 2011, to sign or veto bills before him.  He used every last minute, signing bills right up to the deadline.

In the past few days, Gov. Brown signed several important employment-related bills into law:

• AB 22: Prohibits employers from being able to use credit reports for applicant or employment purposes, except in limited circumstances.
•  SB 459: Provides new penalties for “willfully” misclassifying independent contractors. Imposes joint liability on non-attorney outside consultants who knowingly advise an employer to treat an individual as an independent contractor to avoid employee status.
• AB 1396: Requires written commission agreements. Employers must comply by January 1, 2013.
• SB 299: Makes it an unlawful employment practice to refuse to maintain and pay for coverage for an employee who is on pregnancy disability leave under the same conditions that coverage would have been provided if the employee had continued in employment during the PDL leave. Look for upcoming newsletters for an in-depth explanation of what this bill means for your existing policies.
• AB 887: Further defines “gender” under the Fair Employment and Housing Act to include both gender identity and “gender expression.” Gender expression is defined as “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”  This definition is consistent with existing law.

Gov. Brown vetoed AB 325, a CalChamber “job killer” bill, which would have required California businesses to provide up to three days of unpaid bereavement leave.

We will discuss new employment-related legislation in more detail in the upcoming issues of HRCalifornia Extra and California Employer Update. Stay tuned …

Not a CalChamber member? Sign up for a 15-day Free Trial.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Bill Banning Credit Report Use for Employment Passes Senate Fiscal Committee

A California Chamber of Commerce-opposed bill banning most employers from using consumer credit reports for employment purposes passed the Senate Appropriations Committee on Aug. 16, 2011.

AB 22 (Mendoza; D-Norwalk) unfairly limits private employers’ ability to use consumer credit reports for legitimate employment purposes, unless the information in the report is “substantially job-related” and for a “managerial position.”

Employers in California are already significantly limited in their use of information from employee credit reports. Specifically, the federal Fair Credit Reporting Act and California’s Consumer Credit Reporting Agencies Act require an employer to:

(1) Notify the individual that it may obtain a credit report for purposes of the employment action at issue and also provide information about the company utilized by the employer for obtaining a report;

(2)  Have the consent of the employee to obtain the report, and if requested, give the employee a copy of the report as well;

(3)  Provide the individual with a copy of the report and a “Summary of Your Rights Under the Fair Credit Reporting Act” if the employer intends to take an adverse action, such as not hiring the applicant based upon information contained in the credit report; and

(4) If an adverse action is taken, disclose to the individual the credit reporting agency that provided the report as well as provide notice of the individual’s right to dispute any information in the report and also obtain another free report from the credit reporting agency. Existing law provides the needed protections for applicants and/or consumers with regard to employee credit reports.

Finally, although other states, such as Oregon and Illinois, recently enacted legislation limiting the use of employee credit reports, such legislation is not nearly as restrictive as AB 22. The legislation passed in these other states allows employee credit reports to be utilized for any position where a credit report is “substantially job related” and/or is a “bona fide occupational” requirement.

Conversely, AB 22 limits the use of credit reports to “managerial positions” where credit history is “substantially job related,” thus ignoring the other numerous non-managerial positions in the workforce where employees have unsupervised access to employers’ and consumers’ financial information, trade secret information and assets.

AB 22 passed the Senate Appropriations Committee on August 15, 5-2. The bill will be considered next by the entire Senate. See CalChamber’s Top Stories for detailed coverage of AB 22.

Staff Contact: Jennifer Barrera, CalChamber policy advocate

Red Flags Rule Enforcement in Effect December 31, 2010

Employers take note: The Federal Trade Commission (FTC) will start enforcing the Identity Theft Red Flags Rule from December 31, 2010, forward. The Red Flags Rule requires certain financial institutions and creditors to develop, implement and maintain a written identity theft prevention program.

To learn more about the Red Flags Rule and how it applies to business owners, CalChamber members can read the full update and analysis on HRCalifornia. Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.

Business owners can download an FTC publication, Fighting Fraud with the Red Flags Rule: A How-To Guide for Business, for information on complying with the Rule. The FTC also created a step-by-step instruction form to help explain how to design an identity-theft prevention program for businesses and organizations with a low risk for identity theft.

Security and Privacy Collide in the Workplace: Pilot Refuses TSA Full Body Scan

ABC reported on the story of pilot Michael Roberts who risks losing his job because he refused to submit to a full body scan conducted by an electronic imaging system. He also refused an alternative full body pat-down by Transportation Security Administration employees. Full body scanners have been called "virtual strip searches" for the high level of detail they provide about a person's body, and they've been at the center of criticism from privacy advocates.

In an interview, Roberts called the procedures "an outrage" and stated "the Fourth Amendment is there for a reason." His attorney stated Roberts plans to file a lawsuit in response to the incident.

The Fourth Amendment to the United States Constitution protects people against "unreasonable searches and seizures" and applies even when the government acts in its capacity as an employer. In this case, though Roberts' employer (an airline) did not own the body scanners, he was required to pass through them as part of his job.

The Fourth Amendment does not apply to searches conducted by private employers, and California courts have not yet ruled on how the "reasonable expectation of privacy" standard embodied by constitutional law applies to private employers. California law does contain specific privacy protections for employees (such as restrictions on workplace audio or video recordings). Though Roberts' issue is unlikely to affect most employees given the very specific nature of Roberts' job and work environment, privacy issues have become a hot topic in the workplace, and new technology continually gives rise to additional privacy issues.

Roberts' wrote a public blog detailing his experiences, which highlights the ever-increasing intersection of social media and the workplace, a topic discussed in HRCalifornia's Social Media White Paper -- available to nonmembers and members.

From social media and text messaging to monitoring employees, balancing business needs with employee privacy is tricky. Visit HRCalifornia's extensive privacy law library for more information on privacy laws and issues that affect the workplace.