Sardar Law Firm

Employers Asking for Facebook Passwords Could be Violating Federal Law (Really)

In Social Media, Technology Issues and the Law on March 2012 at 2:33 pm

According to recent reports, certain employers across the country are demanding the social networking information from job applicants as part of the interview process — including photos and personal messages not shared with anyone else; they want user names and passwords for social networking and email websites from all applicants.

In one case, the Associated Press reported a statistician was asked for his Facebook user name and password so that the employer could review private components of his profile as part of the interview process for the job he was applying for.  The Maryland Department of Corrections has begun asking applicants to browse through their Facebook accounts in the presence of an interviewer.

At least two other cases were identified where individuals who were applying for jobs were required to turn over Facebook passwords and user names in order to be considered for the job they were applying for, as well as a city that, until recently, required job applicants to provide access to their email accounts.

The first thought here is:  is it okay for an employer to ask for my political views, sexual orientation, whether I’m in an inter-racial marriage or if I have kids, and so much more?  Generally speaking, the rational part of the mind screams that this cannot possibly be okay.

Even Facebook came out against this practice.  Facebook noted that the practice “undermines the privacy expectation and the security of both the user and the user’s friends” and could expose employers to lawsuits based on discrimination if the employer discovers the individual is a member of a protected group and then does not hire that person.

Turns out, that may actually be the case.

U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) today called on the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice to launch a federal investigation into this trend by employers.

They argued that this trends represents a violation of personal privacy and could set a dangerous precedent, while making it more difficult for Americans to get jobs.  It would also expose employers to discrimination claims because these social networking sites have information on things that employers are not supposed to ask about, or make a decision based on (religion, race, age, marital status, pregnancy status,, etc).

“I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks,” said Blumenthal. “A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy.

Facebook itself has warned employers that it would take legal action against them for these practices.  Citing “a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles,” Facebook’s chief privacy officer warned that the company could “initiate legal action” against employers who do so.
In at least two states, Illinois and Maryland, lawmakers are pondering possible legislation to prohibit public employers from asking job applicants to turn over their passwords to their private Facebook accounts.
The question may be up in the air right now, but it seems that it would be better to err on the side of caution as an employer and let a potential employee’s private life remain private in an effort to avoid discrimination claims.

by: Sheheryar Sardar, Esq. & Benish Shah, Esq.Sardar Law Firm LLC

For more information on social media law, contact: Sardar Law Firm at sardar@sardarlawfirm.com.

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  1. […] up, and for some reason employers are either over-reaching or not reaching at all.  (See: Employers Asking for Facebook Passwords Could be Violating Federal Law (Really); Assess, Influence, & Evolve; Embrace Social Media, But Minimize the Risks). So we’ve […]

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