However, if it's a civil matter (i.e. you sue), then you just need "balance of evidence", not "proof beyond reasonable doubt". You'll try to prove that it was a factor, and they'll try to prove that it wasn't. You might argue that at this stage you're be neck and neck with the other candidates (having passed the previous filters), and it's just going to come down to a "gut feeling" from the hiring manager - so they will almost certainly be swayed by anything which they might dislike on your Facebook page. I've a feeling it would be a horrible case to try to defend against.
There's valid reasons for demanding Facebook login details, but if I were an employer I'd use a trusted third party to look for me, and only report things which have been cleared by a legal team. When the Australian government does security vetting, this is how it works - security personal do all the vetting, keep everything private except the "security clearance passed / failed", and can get thrown in prison if they let the wrong information out.
I'd imagine it's probably not illegal, since that's not the only information on your profile. Just like they can't ask you your race or marital status, but when you come in for the interview they can certainly see the color of your skin and if you're wearing a wedding band.
It should be illegal though- I'm not sure when it ever became acceptable to ask for someone's login credentials.
Should it be illegal though, if the applicants have to agree to do it in the first place? That's the piece of this that seems to get lost - the applicants are, for whatever hard-to-fathom reason, consenting.
It's shady, and seems short-sighted, but no one is disclosing information against their will here.
Should it be illegal to ask interviewees to sleep with you in order to be considered for the job? After all you're not forcing them, and some people might be desperate enough for a job to consent.
You can already sue for such harassment/discrimination. I just don't see why we need a special law regarding Facebook here if the underlying discrimination possible is already illegal.
I'm not a lawyer, but it seems that this practice is so wide-spread that there's enough grey area for hiring managers to get away with it, so the current laws aren't enough. Internet social networking is such a new and world-changing concept that I believe new laws are necessary to specifically address these issues.
But the underlying information - your social interactions and personal communications - are not new. An employer could ask for your email history, banking information, etc. Should that be illegal as well? What about background checks, credit history check, etc?
My only point is that I don't see why there needs to be a special exemption for social networking data, if the predatory behavior is already illegal b
I agree with you that it's silly to think of special laws being created specifically for facebook and the like. The problem with laws in all areas right now is that the internet and everything that came with it is so far "out there" that there's no way that lawmakers 50 years ago could imagine its impact. That's lead to now, where some laws are wholly inadequate to deal with real issues that we face.
In hiring laws, it's the applicants that are getting screwed by the lack of these laws, because their choices are to either acquiesce to the hiring manager's demands or lose the job. While it's easy for some people to say "I'd just walk out," a single mother who needs to feed her kids probably wouldn't be so quick to do so.
In the end, it's a matter of the job market. If the market were flush with openings, hiring managers would have to be on their best behavior for fear of losing a promising candidate. Right now though, that's unfortunately not the case, so it's up to regulation to give people some basic rights. In my opinion.
Asking for you to provide such information, or asking for your permission to request such information from third parties (as is done with employment or credit references, for instance) seems fine. What seems to cross a line here is asking for sufficient authority from you to permit them to pose AS YOU to a third party in order to access that information.
It's like if, in order to perform a credit check on you, they asked for your SSN, mother's maiden name, etc., and then applied for a couple of credit cards on your behalf to see if you get accepted.
There are ways to perform credit checks without committing identity theft. I would think there must be ways to obtain 'social references' without identity theft either.
As far as I can tell, the practice is not wide spread at all. Hypothetical talk about it is wide spread.
This article cites the exact same incident that every article I've read cites. Maybe when at least a single new incident is reported since the last time this made headlines we can talk about it being wide spread.
I suppose that's a matter of anecdotal evidence on both of our ends. I have friends who have applied for jobs and had more than once been asked for this information- either to login to facebook in front of them, or provide login info. While maybe it's 3 or 4 times that I've heard of it personally, my impression is that it's probably wide-spread just looking at those statistics.
It should be illegal because the balance of power is in favour of the employer most of the time. Same as questions about whether you plan to have children, if it was optional to ask then those who don't would choose to answer and those who do would not, puttong them at a disadvantage.
It's not hard to fathom at all. For as much as the average person complains about work, people really want jobs.
There's a severe power imbalance. If you don't take the job, in most cases there are seven other qualified applications who will take it instead. Odds are that one of them will fork over their login info. And even though few people truly want to disclose it, once it becomes a de-facto standard, people will have little choice. The power imbalance is the crucial problem, and companies shouldn't be allowed to dictate unreasonable terms to employees or potential employees just because that imbalance allows them to obtain consent in most cases.
In Canada, there are two provisions of law that are common in many "manager 101" training courses that I can recall:
The Employment Equity Act is aimed at protecting women, visible minorities, people with disabilities and Aboriginals.
"5. Every employer shall implement employment equity by
(a) identifying and eliminating employment barriers against persons in designated groups that result from the employer’s employment systems, policies and practices that are not authorized by law" (1)
The Canadian Human Rights Act is aimed at preventing discrimination "practices based on race, national or ethnic origin,
colour, religion, age, sex, sexual orientation,marital status, family status, disability orconviction for an offence for which a pardon
has been granted."
"7. It is a discriminatory practice, directly or indirectly,
(b) in the course of employment, to differentiate adversely in relation to an employee,on a prohibited ground of discrimination." (2)
I'm no lawyer but I would tread lightly on "differentiating" by any of these statuses.
I am not a lawyer, but having worked in a corporate setting for years this is something that's drilled into us constantly.
Edit: A bit of searching leads me to the Civil Rights Act of 1964 (https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964). I'm not sure if the wording specifically prohibits asking about protected statuses, but any legal decisions about that would probably have their roots in that Act.
It seems that if you were not hired after the company viewed this private information, it would be very hard for the employer to avoid claims of discrimination based on what they could have seen.
I don't see how your marriage status, parental status or sexual preferences could otherwise be disclosed during a regular job screen process.
However, the employer doesn't have to "confirm membership" of any status in order to open themselves up to credible legal action. All they need to do is give the impression that they were given some information about protected status, and their "no hire" decision becomes easily suspect.
It would be hard in a litigation setting for the employer, after viewing someone's Facebook data, to be able to cite and document exactly which pieces of information influenced their decision, and which pieces of (discriminatory) information did not influence their decision.
This isn't something that a smart employer would want to open themselves up to. It seems like the actual cases cited have all been rather limited in scope (checking prison guards for gang affiliation).
