NJ Labor And Employment Law

The New Jersey Labor and Employment Law Blog is authored by Jay S. Becker and Joseph C. DeBlasio, shareholders in the Labor and Employment Law Practice Group, with support from the associates in the Group. It is dedicated to provide news and updates regarding all labor and employment matters throughout New Jersey.

The Social Media Battle Between An Employer's Right To Know, and An Applicant's Right To Privacy.

March 26, 2012 | No Comments
Posted by Jay S. Becker

There has been a lot of discussion lately regarding an employer’s right to know as much as possible about an applicant, as opposed to that applicant’s right to privacy.  Should an employer be limited by what is contained on an applicant’s self-serving resume or application, and/or what the applicant decides to share during an interview, or should an employer have a right to learn more about the applicant, by demanding the applicant’s password to his/her social media sites?  When does an employer’s right to know versus an applicant’s right to privacy begin and end?

If anyone has been on various social media sites, such as Facebook, LinkedIn, My Space, You Tube and Twitter, you would know that there is a lot of information that one may learn about another.  Whether it is one’s taste in music or food, where one likes to vacation, to the sports one likes to play.  You may see some very interesting photos.   You can learn about one’s family, one’s religious, cultural or political beliefs, as well as one’s age, sexual preference and/or racial makeup.  You could learn that the applicant may suffer from some disability, based on the information or photos contained therein.  You also may learn the identity of the friends, organizations or other affiliations and connections one may have.

Does an employer have a right to all of this information?  Will some or all of this information assist an employer in determining whether the applicant will be a productive member of the workforce and a good hire, or will the disclosure of this information cause one to judge, leading to potential discrimination and other legal claims should the applicant not get hired, based on something that the employer read or saw online?

We all know that an employer has the right to set the terms and conditions of employment, and if an applicant does not like any one of those terms or conditions, the applicant can withdraw his/her candidacy and apply elsewhere.  We also know that a job is a privilege, not an entitlement.  But does applying for a job, mean that one agrees to waive all rights to privacy?

And if employers are allowed to dive into the private social media lives of applicants, can administrators do the same for students applying for college or graduate school admission?  Shouldn’t a school have a right to know what kind of student it may be accepting, other than what appears on a transcript or an SAT score?  What about clubs and organizations–can a swim club or book club for that matter, decide who will or will not be a member, based on what was on an applicant’s social media site?

Undoubtedly, this issue will continue to get more and more coverage as the the dispute rages on.  There are plenty of legislators across the country tackling the issue as we speak.  You have certainly not heard the end of this controversy.

Please reply to this blog with your comment, thought or suggestion on the issue–from both the employer, and the applicant’s point of view.

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