By now, we have all heard the warning: potential employers will look at your Facebook page. We have been sufficiently terrified by the cautionary tale about the keg-stand profile pic (why is it always a keg stand?) that kept some otherwise capable candidate from getting hired. Indeed, we have taken note, with increased utilization of privacy settings and a collective awareness by job candidates about the visibility of social network sites.

Now, with the quickly spreading news of Justin Bassett, the warnings (and inevitable cautionary tales) become more epic. Bassett is a statistician out of New York, who, while on a job interview, was asked to log in to his social network profile. Bassett not only refused, but shared his story widely, sparking debates about privacy, employee rights, and the blurring line between personal and professional.  

Stemming from Bassett’s story, we are now hearing about the increasing regularity with which employers ask for access to applicants’ social media profiles. As applicants become more conscientious about their social media presence, and more diligent in their use of privacy settings, employers are responding by seeking deeper access. This manifests in requests for applicants’ login info, asking applicants to become “Friends” with an HR representative, and/or prompting candidates to log in to their accounts during an interview.

Unsurprisingly, people are mad. Moreover, people are confused. Is this legal? Should it be? Again, we must contend with murky legal code in light of new technologies and savvy users within established arenas. Law makers in Maryland and Illinois are currently debating legislation on this issue[i].

The two sides of the argument are relatively straightforward: On the one hand, detractors of the practice view it as an explicit privacy breach. Orin Kerr, a GWU law professor, compares it to an employer asking for keys to your house. And indeed, Facebook profiles are likely to contain information about which employers are not legally allowed to ask (e.g. marital status, age, children, sexual orientation etc.).  Supporters of the practice, however, argue that employers have the right to gather information on applicants. Since much of the applicant’s life takes place on and through social media, this is the logical and legal place to look. Moreover—and here is the backbone of their argument—they claim that participation on the part of the applicant is voluntary. This notion of voluntary participation is the key to legality, as it grants employers a ‘way around’ occupational legal codes that prohibit direct inquires about the personal lives of perspective employees. It is this claim to voluntary participation that I will focus on for the remainder of the post.

One might argue that participation is voluntary in 2 main ways: first, through direct refusal, and second, by limiting/eliminating one’s social media presence, giving employers little or nothing to access.

Most directly, these hiring practices can be considered voluntary in the sense that the applicant has the right to refuse. Indeed, Justin Bassett did just this, withdrawing his application and openly denigrating the policy. He did not want to share his social media profile, and so he did not. He opted out.  In doing so, however, he necessarily gave up access to that job and its accompanying resources. He acknowledges that his privileged position enabled him to reject work, and that others may not have the same luxury.

Participation is voluntary then, only for those (very very few) who do not depend upon the work for which they apply. Indeed, unequal power-dependence relations preclude voluntary action. In most cases, a refusal on the part of the applicant to comply with employer requests holds very serious consequences—up to and including the loss of a means of income and survival. Compliance and choice are very different things, and as described in Steven Lukes’ three-dimensional view of power, coercion and compliance often go invisibly hand-in-hand.

But what if the applicant elects to forego social media? One might argue that if s/he does not want to grant employers access to hir personal life, the applicant has the choice to relinquish a digital presence.

If we look closely, however, we see that this too is not a ‘real’ choice. First, as I wrote about a few weeks ago, there are serious social consequences to social media abstention. The abstainer is not only outside of the social-news loop, but disconnected and marginalized in a cumulative way. Second, as written about by Mark Andrejevic, and seen empirically in the case of Noah Kravitz, a social media presence is in many cases an important part of the employee’s capital. Hir social media presence is sold along with, and as part of, hir labor. For many jobs, a social media absence lowers the market value of the applicant, bringing us back to the power-laden relationship between choice, compliance, and dependence.

In short, participation is not voluntary. If law makers and employers want to maintain social media access as a legal hiring practice, they must make their arguments in the context of requirement rather than request.

[i] I discuss this practice in terms of ‘regular’ jobs (i.e. jobs that do not require federal security clearance). Government jobs that require security clearance (e.g. working for the CIA or FBI) have a wholly different set of rules and procedures.

Follow Jenny Davis on Twitter: @Jup83