The Associated Press recently reported that an increasing number of employers are asking job applicants for their Facebook user names and passwords during job interviews. This is troubling to some Facebook users because Facebook profiles often contain personal information meant to be viewed by friends and family only. The report generated widespread media attention and public outcry, and even prompted a statement from Facebook threatening legal action against those who solicit another person’s user name and password.
While this practice is obviously disfavored in the court of public opinion, what’s less clear is the legal basis for a lawsuit by Facebook or any other individual subjected to it. There is currently no law that explicitly prevents an employer from asking for a current or prospective employee’s social media account information. One logical but untested theory of liability is based on federal and state anti-discrimination laws. Under these laws, employers cannot consider information about an employee’s national origin, religious views, disabilities, age, marital status, or other classifications when making employment or hiring decisions about that individual. If, for example, an employer discovers that a job applicant has a disability by viewing their Facebook page and then decides not to hire that individual, the employer could be at risk of lawsuit.
There is no doubt that the scarcity of law on this issue puts job applicants in a difficult position: give access to private information to ensure the possibility of being hired, or refuse and risk disqualifying themselves from the job. Recognizing this, State and Federal lawmakers are quickly taking steps to fill the gap in legal precedent by introducing legislation to ban all employers from asking for private information about social media accounts at any stage in the employment relationship.
At the federal level, two United States Senators recently issued a press release denouncing the practice and called upon the Department of Justice and Equal Employment Opportunity Commission (“EEOC”) to investigate whether employers that ask for this information violate federal law. Likewise, a member of the House has already proposed legislation that would allow the Federal Communications Commission to promulgate rules prohibiting regulated entities from demanding their prospective or current employees’ social media account user names and passwords. Although the measure was struck down, members of both the House and Senate appear poised to introduce new legislation that would ban the practice outright.
State legislatures have been more expeditious to propose legislation to address this issue. At least seven states (Maryland, Illinois, California, Massachusetts, New Jersey, Washington, and Minnesota) have already introduced legislation that would prohibit employers from asking for user names and passwords to social media websites. Maryland became the first state to pass such a measure and the bill is awaiting the Governor’s signature.
The Massachusetts bill prevents employers from requesting employees’ social network and email account information, but conversely allows them to regulate how and when employees may access these accounts while at work. Maryland’s bill is the most comprehensive of the proposed laws in that it bans employers from retaliating against job applicants or current employees who refuse to disclose personal social networking account information. By contrast, California’s bill prevents employers from seeking access to any content of an employee’s social media account through any means. In theory, this additional prohibition will prevent an employer from asking an employee to log on to their Facebook page in order to view the page over the employee’s shoulder (a tactic referred to as “shoulder surfing,” reportedly used to access the information in a less intrusive manner).
Although no similar action has been taken in New Hampshire, it is important for employers to consider the risks inherent in engaging in this practice with their current employees or job applicants. While vetting qualified job applicants is important to any employer, the legal and public relations risks associated with this practice may well outweigh any benefit of full access to an applicant’s Facebook page. There is also considerable risk associated with making employment decisions based on information gained through monitoring personal social media contacts. If a prospective employer is made aware of information on these sites about protected activity (union organizing, whistleblowing) or membership in a protected class (sexual orientation, religious affiliation), and an adverse decision is made, it will be very difficult for the employer to prove that the action was not taken based on this information. In addition to these risks, engaging in this practice may create an overly intrusive work environment that may hamper employee morale or deter otherwise qualified applicants from seeking employment.
Nicholas Casolaro is an associate in the Litigation Department of the McLane Law Firm. He can be reached at (603) 628 -1246 or at [email protected]. The McLane Law Firm is one of New England’s premier full-service law firms with more than 90 attorneys in four offices spread throughout Massachusetts and New Hampshire.