Thinking about requiring future job applicants to turn over their Facebook passwords as part of the hiring process?
Think again.
As social media web site use continues to grow, some employers are requiring job applicants to turn over their passwords for popular Web sites like Facebook in an effort to “dig a little deeper” into that applicant’s background. Although such a practice is not per se unlawful, it does potentially expose employers to legal consequences.
For example, under federal and Oregon anti-discrimination laws, employers are generally prohibited from asking interview questions of an applicant that would reveal information about that applicant’s protected class status, such as their race, religion, national origin or disability (other than whether the employee can perform the essential functions of the job with or without accommodation).
Similarly, the Genetic Information Nondiscrimination Act (GINA) prohibits employers with 15 or more employees from “acquiring” genetic information about employees and applicants and then discriminating against them because of that genetic information. Yet a simple internet search could yield information about that applicant’s protected class status, such as the applicant’s race or membership with a particular religion. Similarly, a Facebook “wall” could reveal information about the applicant’s “genetic information,” such as a post about the applicant’s upcoming cancer screen, history with cancer or a discussion about a parent’s alcoholism. How will that employer definitively prove that an applicant’s “genetic information” or protected class status did not factor in to the decision to not hire that applicant?
More importantly, what does such a search really tell an employer about a candidate’s skills, qualifications, or potential ability to succeed at
the position?
Legal issues aside, employers should also be cautious about the potential public relations ramifications of asking candidates for passwords/usernames. Although the current economy is an employer’s or “buyer’s” market due to the scarcity of open positions, that will change, and prospective employees may be inclined to not apply for jobs at a company that has a practice of looking into personal email and social networking accounts. Employers could easily be overlooked by the very “best people” they hoped to hire through their internet screening processes.
Facebook, meanwhile, strongly opposes internet screening processes that require applicants to turn over passwords. Facebook’s Chief Privacy Officer, Erin Egan, announced on March 23, 2012, that ‘‘[t]his practice undermines the privacy expectations and the security of both the user and the user’s friends . . . . We don’t think an employer should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do.’’ (See http://www.facebook.com/notes/facebook-and-privacy/protecting-your-passwords-and-your-privacy/326598317390057.)
Legislatures in at least five states may eventually agree with Facebook. These states (California, Illinois, Maryland, Minnesota and New York) are considering legislation that would limit an employer’s ability to ask prospective and/or current employees for passwords and usernames as a condition of employment. (The Oregon Legislature, which wrapped up its 2012 regular session on March 5, did not consider similar legislation.)
The U.S. Congress is also getting involved. Senators Charles Schumer (D-NY) and Richard Blumenthal (D-Conn) recently asked the U.S. Department of Justice and the Equal Employment Opportunity Commission to launch a federal investigation into whether employers who ask for their applicants’ and employees’ passwords and usernames violate federal law. These same senators also announced that they are drafting legislation to “fill any gaps in federal law that allow employers to require personal login information from prospective employees to be considered for a job.” (See http://blumenthal.senate.gov/newsroom/press/release/blumenthal-schumer-employer-demands-for-facebook-and-email-passwords-as-precondition-for-job-interviews-may-be-a-violation-of-federal-law-senators-ask-feds-to-investigate.)
Tips for Employers. Generally speaking, it is not recommended that employers ask for passwords from or conduct internet searches on applicants. If they conducted, employers should create a policy (and follow it) with the following to potentially avoid legal liability:
• Tell applicants that they may be subject to an internet search. This notice could be placed in the application or as part of the on-line application system.
• Identify a legitimate, business- or job-related reason for doing the search. If the employer is doing the search out of curiosity, the search shouldn’t be conducted. Alternatively, hiring for a position that will work with company confidential information may justify a search of that candidate’s use of the internet and experience with privacy issues.
• Identify who will do the internet search. Will the employer use an outside service to screen out information about the candidate’s protected class status? If a current employee is going to do the search, it is recommended that someone who will not be part of the hiring process, or part of the future employee’s chain of command, do the search and screen out the applicant’s protected information.
• Determine how the search will be conducted. If the employer is not going to hire a third party to do the search, it is important to identify what internet sources will be used for the search.
• Specify, up front, what “positive” and “negative” information will be considered. Once the employer has information about the candidate, what will it do with the information? For example, how “negative” does the search result have to be before a candidate will not be considered (and what is “negative” information)? What “positive” information will the employer consider?
• Give the applicant a chance to explain the “negative” findings. Just as the Fair Credit Reporting Act gives candidates a chance to see what “negative” information was considered as part of a background check, and an opportunity to explain that information, employers should give applicants a chance to talk about the results of the employer’s internet search.
Tamara E. Russell is an attorney partner at Barran Liebman LLP, a law firm devoted to the interests of employers and management in labor and employment law matters. She is a member of the Firm’s Social Media practice group, and regularly writes about and teaches employers about the interplay between social media and labor and employment law. Contact Russell at trussell@barran.com or 503-228-0500.
