Some businesses, while screening job applicants, may request passwords that would allow them to directly access applicants' Facebook accounts, along with other social media services. According to an Associated Press report, this has become an increasingly common practice among employers, as the increase in social media usage has offered a view into job applicants' and employees' lives and, perhaps, their characters. In an economic climate where prospective employers may find themselves inundated with job seekers, this may seem like an attractive option at first glance. It is not.
The practice may not directly violate any laws, although legislators have already begun to propose new laws to counteract this trend. Facebook itself has also weighed in, calling the practice "inappropriate" and warning of direct and indirect legal complications. Small businesses looking to hire new employees should understand the possible consequences of attempting to poke around in a job applicant's online life.
Facebook's Chief Privacy Officer, Erin Egan, issued a statement on Friday, March 23, 2012, stating the company's position that employers should not demand passwords from employees or job applicants, and threatening legal action against anyone using "password sharing" applications. In addition to describing the trend as "distressing," she warned of additional legal issues that an employer could face based on information obtained from an applicant's Facebook profile. Job applicants do not have to disclose certain personal information during interviews, and employers are not supposed to ask for such protected information. This includes information regarding whether an applicant is married, has children, or belongs to a protected group involving age, race, gender, disability, et cetera. An employer who discovers information like this while fishing through an online profile could then face a legal claim for employment discrimination if they do not hire that applicant. This is an unintended but clearly serious consequence for an employer.
Two Democratic U.S. Senators, New York's Charles Schumer and Connecticut's Richard Blumenthal, have asked the Attorney General and the Equal Employment Opportunity Commission to investigate the matter. They have suggested that the practice might violate two federal statutes, the Stored Communications Act and the Computer Fraud and Abuse Act. They are also working on a bill that would address any gaps that the other statutes miss regarding this issue. State legislators in California, Illinois, Maryland, Massachusetts, and possibly elsewhere have introduced, or plan to introduce, bills to prohibit public and private employers from demanding online passwords from job seekers. Some bills extend to other online services like e-mail, or prohibit employers or their agents from "friending" an applicant in order to access otherwise-protected information.
A fundamental principle of online conduct, and information security, is maintaining the secrecy of passwords. Employers face any number of challenges in seeking and hiring employees, and they may view social media as an effective means to learn more about prospective hires. Considering the potential legal liability, not to mention the risk to the employer's own data security and the potential public relations fallout, fishing through social media is likely more trouble than it is worth.
The New York business attorneys at Samuel C. Berger, PC offer fixed-fee packages of legal services to businesses and entrepreneurs who want to do business in New York and northern New Jersey. To speak to a member of our skilled legal team, contact us today online or at (212) 380-8117.
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Small Businesses Must Adapt in Order to Make It in a Bad Economy, New York & New Jersey Business Lawyer Blog, January 24, 2012
Trends from 2011 for New Jersey Businesses, New York & New Jersey Business Lawyer Blog, January 5, 2012