If You're Asking for the Facebook Passwords of Job Candidates, You're Asking for Trouble

Vol. 2, No. 1

Andrew M. Gould is a partner with Wick Phillips Gould & Martin, LLP. He specializes in representing employers in connection with employee training, counseling, strategic planning, and employment litigation.

 

Recently, various news outlets have been reporting about an allegedly growing trend involving employers requesting Facebook passwords from job seekers (e.g., “Employers Ask Job Applicants for Facebook Passwords,” www.msnbc.com; Mar. 20, 2012). Other than in the context of certain state government employers, 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 largely inconsequential. Now that two Senators have requested that the Department of Justice investigate this “practice,” I find the story at least worthy of a short article.

Apparently in 2009, two employers (the City of Bozeman and the Maryland Department of Corrections) ventured into this unchartered territory. It’s not clear what rekindled the issue but regardless, rekindled it is.

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 onto their Facebook page 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 legality. More importantly, it is difficult to see what benefit there is to learning more information, likely personal and off limits in the context of an employment decision, 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, that regulate accessing another’s electronically stored communication without authorization. Whether requiring an individual to provide access to their Facebook page as a condition of employment constitutes sufficient authorization or coercion is unclear.

Beyond the legality of the practice, the question is why would employers even want access to such nonpublic, 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 is quite another to probe into the private affairs of a candidate. If in your candidate interview process you generally inquire into a candidate’s personal life, something that except in very limited circumstances is per se unlawful, then this point will be lost on you. For everyone else, know that there are many laws restricting an employer’s actions toward candidates and employees based on protected characteristics (e.g., disabilities, religious beliefs, political affiliations, sexual orientation, etc.). 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—among them interviews, reference checks, personality and drug tests (subject to applicable law), and credit checks. Beyond that, you would be well-advised to think before probing further.

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