One story making the rounds recently was about employers asking prospective job candidates for information needed to access their Facebook profile. Of course, employers crawling Facebook isn't new, but the idea that an employer would ask a potential hire for login credentials seems a bit over the top. But in many ways, this kind of scrutiny is not new.
While today's Facebook generation may not remember it, once upon a time there was an era when employers might ask a job candidate to take a polygraph as a condition of being hired. Thankfully, there was enough of an outrage over that practice that it was made illegal.
Similarly, some companies ask applicants to take drug tests. However, historically drug testing has been easier to pass through the legislature and the courts. After all, even if you have a reasonable argument to counter "you don't want your fill-in-the-blank to be on drugs," opposing drug testing is like endorsing an ad campaign against yourself in the next election.
At the heart of this debate, there's this stew of issues cooking with issues of personal behavior and privacy being positioned against an employer's freedom to set screening criteria for hiring, "safety", and a host of other "interests". If I sound less than balanced when characterizing the interests of employers in this issue, it's because I'm skeptical of most arguments in favor of this type of employer behavior.
Earlier this week on NPR's Talk of the Nation, they had a segment about teachers, their behavior outside of work and social media. In the segment, one caller referenced a teacher in Georgia who was fired for posting a picture on Facebook -- a picture of herself, on vacation in Europe with a glass of wine in her hand. A contingent in the local community raised enough of a fuss that the local school board ran her out. While one of the guests on the show argued that "teachers are the symbolic and moral leaders of our children and they need to be conscientious of local morality," constitutional law scholar Jonathan Turley, who authored this piece for the LA Times, notes that the problem goes beyond your own participation and could cause you problems if someone at a party posts a picture of you.
Employers claim that this kind of scrutiny is an acceptable part of their screening process and that they have a right to set the criteria for the people that they employ. Somewhere, within the process of deciding to adopt these practices, they have espoused an idea that this will bring them better employees; more honest, more reliable, more moral, safer, perhaps even more harmonious. They take the position that since you have a choice of working there or somewhere else, that these processes and requirements are not an unreasonable cost of screening.
Employment law has all sorts of rules designed to prevent some level of discrimination and unfair treatment. In practice however, this doesn't prevent businesses from hiring the pretty one, the tall one, the guy from my church, or that nut with the funny beard and his own iOS app that I met at the coffee shop last night. And when you consider all of the 'importance of establishing a corporate culture' discussions that float around, who's to say that these examples aren't important indicators of a good fit? And yet, what about the ones that were skipped over -- the ugly one, the one that was too old, or even that guy that voted for Obama.
Years ago living in the Bible-belt South, I worked for a music store that essentially had a religious test for hiring. The business was owned by born-again religious types that became more devout as the business climate grew worse. Perhaps the only reason that I was hired there was because my friend who already worked there gave me a heads-up on how to answer some of the interview questions. Sometime after I left, they began holding all-employee prayer meetings. Realistically, you probably couldn't find a more clear-cut case of behavior that employers should not do and laws on the books designed to prevent; and yet, within the local community, I doubt that anyone would give it a second thought.
Laws to Prevent Employers from Asking for Facebook Login Credentials
Lately, when Apple, Google or Facebook find themselves in the news, somebody wants to codify some aspect of their behavior with a law. Here's an example of what's started happening around login credentials, Maryland passes law prohibiting employers from asking for social network passwords. To me, the amazing aspect of the case that helped fuel this law is that the guy already worked at the place, but in order to get re-certified, his employer wanted his login credentials.
While we can always hope that laws like this will work like the polygraph laws and prevent employers from requiring prospective employees from taking a polygraph, I doubt that it will have the same success. Instead, I suspect that the end result will be more akin to my experience at the music store. After all, a polygraph test requires an overt process that should be easier to prove if the employer was called out. Probably the most damning thing about the polygraph wasn't the idea of testing prospective employees, but rather the accuracy of the test.
Fundamentally, the problem is much broader and the battleground has been fought over for much longer. On the one hand, you have challenges going back to the early civil rights movement trying to force disclosure of Arkansas teachers that were members of the NAACP. On the other hand, you have modern Libertarian politicians who want to kill the fourteenth amendment because it prevents businesses from selling to a customer who is black, Jewish, or comes from India.
It's one thing to "want to pick your team", but what if the criteria you're using isn't connected to job performance. Were the people who worked at the music store better employees because they espoused a religious view? Were they more honest? Did they sell more instruments? I once worked with a start-up where the CTO was a cross-dresser. Would he have made it through some Facebook-based screening process? As the guy driving that company's technology, did it really matter what he did in his personal life? Or for those drug screening advocates, what about Steve Jobs whose recent biography included reference to his noteworthy experience of taking LSD? Assuming that you had the opportunity, would you hire Steve Jobs?
Would You Undergo a Strip Search to work for Google?
Often, when we hear stories about amazing work environments, Google comes up as a great example, so much so that they receive thousands of resumes per day. But what if their employment screening process went beyond five rounds of IQ tests and the need for a Masters degree or a PhD from a top tier school? What if they strip searched prospective employees? What if they required employees to be searched when the arrived and when they left like in the diamond mines in Africa, searching for nuggets of data? How many Google employees would be headed for Facebook?
The simple truth is that most of these aggressive screening techniques are implemented and applied to the desperate -- the people with limited alternatives. If your work environment sucks, you can always work somewhere else -- unless you can't because there are no other jobs, no other opportunities, no other environments. In that same way, these screening methods are not used to identify noteworthy attributes; rather, they are used for subjugation and control.
Forget about the cost to a collaborative, happy work culture, what this type of monitoring and scrutiny also do is diminish the creative diversity of an organization. Take the teacher from the earlier example; by 'cracking down' on her 'immoral' behavior, you also spread a chill across the rest of the community of teachers and prospective teachers. Now teachers with different points of view are afraid to speak out, to be 'caught' behaving in ways that might not meet 'community standards'. One voice equals no new ideas. If your business values innovation, you have squashed it.
Years ago, back in the days of the polygraph test, I had an opportunity to get a job at a record store that required the test. At the time, I had come to a constitutional and ethical decision not to work at any business that required a polygraph. I sometimes wonder how things might have been different if I had taken that job. Eventually, another job came along. It probably wasn't as cool as the job at the record store, but I'm happier for it.
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