Employers Who Ask for Social Media Login Information Facing Growing Scrutiny

April 2, 2012
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New York and New Jersey employers who ask prospective employees to provide their Facebook passwords should be aware of the potential for an employment discrimination lawsuit. While the practice of using social media to investigate the background of job applicants is growing among employers, questions about its legality are also gaining traction. Facebook, often criticized for its own privacy policies, recently released a statement condemning the practice. “We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do. While we do not have any immediate plans to take legal action against any specific employers, we look forward to engaging with policy makers and other stakeholders, to help better safeguard the privacy of our users,” Facebook said. In addition, Sens. Chuck Schumer (D-NY) and Richard Blumenthal (D-CT) recently sent letters to the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) asking them to launch a federal investigation into the practice of employers seeking access to job applicants’ social networking passwords. “Employers have no right to ask job applicants for their house keys or to read their diaries – why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?” said Schumer. Blumenthal and Schumer also announced that they are currently drafting legislation that would seek to fill any gaps in federal law that allow employers to require personal login information from prospective employees to be considered for a job. A recent effort in the House to attach an employer social media ban to pending FCC legislation was voted down. While social media allows employers to learn more about a job applicant and help determine whether he or she would be a good fit for the company, the legal concerns should not be overlooked. Because Facebook provides access to information that can generally not be considered as part of the hiring process, employers could be at risk for discrimination lawsuits. For instance, an applicant’s Facebook page may contain information about his or her religion, age, marital status, or pregnancy status, all of which employers are not permitted to ask about or consider when making hiring decisions. Given the increased scrutiny of the practice, before you log onto Facebook to screen potential job candidates, you should carefully weigh the risks and benefits. If you still want to use social media as part of your hiring process, we would suggest adopting policies that limit the potential for liability. Of course, written documentation of every step in the hiring process should also be maintained as well. If your company has legal concerns about its hiring practices, please contact one of our experienced employment attorneys.