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Locke Lord QuickStudy: Requiring Job Applicants to Disclose Facebook Passwords, is it Worth it?

3/28/2012

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Requiring Job Applicants to Disclose Facebook Passwords, is it Worth it?

An increasing number of employers are requesting that job applicants provide their Facebook passwords in order to review the applicants’ private Facebook profiles as part of the hiring process. Even a cursory review of an applicant’s profile page can provide an employer with a wealth of knowledge about the potential hire and often plays a role in the hiring decision.

In response to this growing trend, several state legislatures, including Illinois, Maryland, Connecticut, New Jersey and California, have introduced or plan to introduce laws prohibiting public and/or private employers from requiring applicants and current employees to disclose or provide access to online social media accounts, including Facebook. Federal lawmakers have also indicated that they intend to propose federal legislation that would prohibit the practice, and two U.S. senators recently asked the Attorney General to determine whether the practice violates the Stored Communications Act or the Computer Fraud and Abuse Act.

In addition, Facebook has taken a stand against the practice, stating that it is a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password. In a blog post on March 23, 2012, Facebook’s Chief Privacy Officer Erin Egan states, “As a user, you shouldn’t be forced to share your private information and communications just to get a job . . . we don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do.” The Facebook blog posting further provides, “We’ll take action to protect the privacy and security of our users, whether by engaging policymakers, or, where appropriate, by initiating legal action, including by shutting down applications that abuse their privileges.”

Although not a direct violation of any current employment laws, employers should be cautious about requiring job applicants to provide their Facebook passwords and/or making employment decisions based on the content of applicants’ Facebook pages. In addition to privacy concerns, an employer could face discrimination claims in the event it does not uniformly and consistently request the information from each job applicant. Further, if a job applicant claims that he did not receive a job offer because of a protected characteristic or trait (such as a latent disability or religious view), an employer with access to an applicant’s Facebook account may find it difficult to argue that it did not have knowledge of such protected characteristic or trait if it is visible on or within the Facebook page. Finally, National Labor Relations Act concerns may arise if an employer continues to monitor the Facebook account and takes action based on the account’s content after the applicant becomes an employee.

As a practical matter, by requesting Facebook passwords, employers may discourage otherwise qualified individuals from applying for the position. Employers should also consider the time and effort it takes to review and monitor the applicants’ Facebook pages.

If an employer chooses to require applicants to disclose their Facebook passwords, it should ensure that the employee acknowledges and consents to the disclosure in writing and require such information from all applicants. As always, employers should base all employment decisions on legitimate, nondiscriminatory reasons.

For more information on the matters discussed in this Locke Lord QuickStudy, please contact one of Locke Lord’s Labor & Employment Practice attorneys or one of the authors listed below:

Kimberly F. Williams  |  T: 214-740-8589  |  kwilliams@lockelord.com