In the past several weeks, various news outlets have reported about a growing trend involving employers requesting Facebook passwords from job seekers. Apparently in 2009, two employers (the City of Bozeman, MT, and the Maryland Department of Corrections) ventured into this uncharted territory.
I’ve never actually heard of anyone asking for a password, or being requested to provide one, and, as a result, I found the stories interesting but inconsequential. Now that two senators have requested that the Department of Justice investigate this “practice,” I find the story worth a mention.
The contention is that certain employers, in their efforts to ensure they are hiring qualified candidates, seek this information to see what’s “under the hood,” so to speak. Employers, according to these reports, are requesting passwords, asking candidates to log on to their Facebook pages in the employer’s presence, or “friending” candidates simply to investigate further.
If you are one of these employers, know that the practice may be on the fringe of being legal. It is difficult to see what benefit there is to learning more information, likely personal, about a candidate or employee. As for its legality, various states provide common law privacy protections for their residents. There are also statutes, including the Federal Stored Communications Act, which regulate accessing another’s electronically stored communication without authorization. It is unclear whether requiring an individual to provide access to their Facebook page as a condition of employment constitutes coercion.
The question is why would employers even want access to such non-public, likely personal, information? It is one thing to peruse someone’s publicly available profile page to get a snapshot of a candidate’s judgment or discretion, but it is quite another to probe into the private affairs of a candidate. If you generally inquire into a candidate’s personal life, something that is—except in very limited circumstances—unlawful, then this point will be lost on you. For everyone else, know that there are many laws restricting an employer’s actions towards candidates and employees based on protected characteristics. One of the best defenses to claims of discrimination by a candidate is to not know the information in the first place.
Curious employers who wish to learn about candidates already have numerous tools available to them—like interviews, reference checks, personality and drug tests, and credit checks. Beyond that, you would be well-advised to think before probing further.
This column is not considered legal advice but solely the opinion of the author. Andrew Gould, Esq. is a labor and employment attorney, Board Certified by the Texas Board of Legal Specialization, with the law firm of Wick Phillips Gould & Martin, LLP. To contact Gould or to suggest topics, e-mail him at: andrew.gould@wickphillips.com.
