Can Employers Legally Ask for Your Facebook Password?

Employers Asking for Facebook Login Info…?

You’ve finally landed that “big interview” for your dream job.  You’ve worked hard and gone to school, pressed your suit, researched the company, polished your resume, and you’re on the way.  Everything is going great, but during the interview, the interviewer tells you, that as a condition of employment, you must provide them with your Facebook login & password, and they’ll get back to you if they feel you’re the right candidate for the job.  Could this open the door to Employment Discrimination and violations of privacy?

The Situation

Over the last year, there has been a disturbing increase in reports of employers asking potential job applicants and current employees for their Facebook and other social media site login credentials.  The employers rationale for the request, is typically to take a look at the employee or job candidate’s pictures and profile updates, to ensure what the candidate/employee tells the employer is the same as what they portray to the rest of the world, to ensure the candidate is a good fit for the company (ie not a drunk), and to follow up on employees to verify whether or not the employee is saying anything inappropriate about the company.  Armed with this information, an employer could make better hiring decisions and release any bad employees.

  • Employment Discrimination

However, an employer with Facebook login credentials, would have access to specific information it would normally not be allowed to ask for from an employee or job candidate, such as: Race, Gender, Religion, National Origin, Age, Familial Status, Disability Status, Genetic Information, and other information a person would consider private such as political affiliation.  An employer would be able to side-step laws enforced by the Equal Employment Opportunity Commission (EEOC), such as: The Civil Rights Act, Age Discrimination & Employment Act, Equal Pay Act, Americans with Disabilities Act, Veteran Status Laws, Genetic Nondiscrimination Act, and other laws shielding protected classes.

Imagine, after the interview, the employer explores your Facebook account and
discovers that you follow a specific religion that has historically clashed with
his/her own religion or that you’ve been divorced and have a mixed-race child or
that you suffer from a disability such as multiple sclerosis and perhaps he/she
discovers your sexual orientation or political affiliation, all of which he/she
wouldn’t be allowed to ask you for, and then decides not to hire you because of
one of these factors discovered on your private Facebook page.  If this happened,
there would be no way of discovering that an act of employment discrimination
took place, because it’s unlikely the employer is going to write down what they
saw or admit to discriminating on that basis.

  • Privacy

In addition to protected class information, an employer with access to a private Facebook page would have access to private/confidential communications such as emails and instant messages that they otherwise wouldn’t be able to obtain.  The risk of an employer seeing this information not only violates personal privacy but could also lead to the employer developing a negative opinion of the job applicant or employee because he/she read erroneous information or viewed information in the wrong context.

Is It Legal?

The mere act of a current or potential employer asking for social media “Login Info” is not itself, illegal.  However, asking for specific protected information is illegal, and having the private access to a social media account, merely allows the employer to obtain the protected information, without actually asking for it specifically.

Additionally, an employer who fires an employee for failing to provide Facebook login credentials could be liable for wrongful termination and find themselves at the bad end of a lawsuit and suffering from public embarrassment.  However, it is not as clear if a potential employer would be liable for refusing to hire a person who refused to provide Facebook Login credentials.

Facebook has stated, “that you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job.  That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.”  Erin Egan, Chief Privacy Officer at Facebook, has suggested that Facebook, will sue employers who ask for the login credentials of employees and potential job applicants because it violates Facebook’s Statement of Rights & Responsibilities.  Though it is not clear, if Facebook will have standing to bring such suits.

Legislators, in the State of Maryland have recently passed a law, which went into effect October 1st , that banned employers from asking employees and job applicants for login credentials to their social media accounts.  Additionally, many other states are considering similar legislation; the issue has even managed to grab the attention of U.S. Senators Richard Blumenthal (D-CT) and Charles Schumer (D-NY), who have asked the EEOC and the DOJ to investigate this unsavory practice, in addition to introducing a piece of legislation titled “The Password Protection Act of 2012“, which aims to update the law, by providing better protection.

No career field has been exempt from this type intrusion; recently, some law students have reported requests for their Facebook login credentials during their “Character & Fitness Interviews”, where they are required to receive a favorable opinion from their interviewer, as a requirement to take the bar exam.  The pressure to provide the login credentials would be overwhelming to say the least.

author: Blake N. Dahl, Esq – SFT Lawyers, LLP  © 2012

If you or someone you know believe you have been a victim of employment discrimination or wrongful termination, regarding your social media accounts, contact an attorney at  SFT Lawyers, LLP, 251 Indiana Ave, Valparaiso, IN 46383  (219) 841-5683.

 

 

  • Kathey Austin

    Excellent article! I did not realize employers were actually asking potential candidates for information on social medias, let alone passwords. I personally know of a Cisco Systems, Inc. candidate that was foolish enough to post unsavory comments on their Facebook page about Cisco offering them a position and how “stupid” the company was. Unfortunately for the candidate, a Cisco employee “saw” the posting and forwarded it to the hiring manager. Needless to say, the candidate is not a current employee.

    Thank you for the article!

    -Kathey