Facebook 2.jpgIncreasingly, employers are asking prospective or current employees to turn over their Facebook passwords in order to review their profiles.  

In response to this increase some states, including California, Illinois, and Maryland, have proposed legislation to ban such conduct. 

Facebook recently interjected its position on this topic when its Chief Privacy Officer, Erin Egan, noted on the company blog that:

This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.

Ms. Egan further notes what this blog has repeatedly warned employers about – reviewing an applicant’s Facebook profile raises a number of legal issues and may open the employer up to discrimination claims. Facebook’s blog post notes:    

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. But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person.

Three Reasons Why Asking Current Employees or Applicants for Facebook Information is a Horrible Idea 

  • A precursor to a Discrimination Lawsuit?

As noted above, this blog has repeatedly cautioned employers about the legal risks created by using Social Media to screen applicants. In sum, when it comes to making employment decisions, employers must continue to be prepared to articulate a legitimate, nondiscriminatory reason for any employment decision and retain appropriate documentation to support that decision.

But given the treasure trove of information that an employer may learn about an applicant or employee through Facebook or other social media outlets, e.g., race, age, pregnancy status, religion, disability status, etc., an employer is almost asking to have any legitimate, nondiscriminatory reasons for making an employment decision subject to being challenged upon review of a given Facebook profile. 

Think of it this way, an employer would never in the course of interviewing a candidate require a resume to include a color picture of the candidate or ask about a person’s age, pregnancy status, race or ethnic background. Yet all of this information and more is readily available through a person’s social media profile.

Additionally, employers often overlook or simply are not getting good advice when it comes to compliance with existing employment laws and regulations and implementing a social media employee screening process.  

  • Federal Prosecution, Computer Fraud and Abuse Act Violations, and other Legal Risks  

Employers should carefully note that Facebook has made it a violation of its Statement of Rights and Responsibilities to share or solicit a Facebook password, which may expose employers to a number of unanticipated legal risks.

This means an employer soliciting a job applicant’s Facebook password could be liable for violating Facebook’s Terms of Use. Where courts have enforced similar terms of use (often called browsewrap agreements) they have been against businesses. See Lemley, Terms of Use, 91 Minn. L. Rev. 459, 472 (2006) (“An examination of the cases that have considered browsewraps in the last five years demonstrates that the courts have been willing to enforce terms of use against corporations, but have not been willing to do so against individuals.”).

Further, the U.S. News reported that the U.S. Department of Justice regards it as a federal crime to enter a social networking site in violation of the terms of service.

Building on this point, Courts have previously found in favor of Facebook where parties have exceeded authorization in accessing Facebook site information as a violation of the Computer Fraud and Abuse Act. See Facebook, Inc. v Power Ventures, Inc. (PDF) (2012). 

  • Big Brother Has Negative Connotations for a Reason 

Sometimes the best advice a lawyer can give to a client has nothing to do with the law. 

When it comes to asking or requiring a current employee or an applicant to turn over his or her Facebook password my personal opinion is simply this is almost always going to be a bad idea. This opinion has nothing to do with what may be legally acceptable. Instead, it is based on two beliefs:

First, I simply have a fundamental belief that some minimal level of privacy should be afforded by an employer to an employee or job applicant. Certainly there may be circumstances where this respect needs to give way to a competing and compelling interest. But absent such circumstances, what is the need to peruse a person’s private Facebook profile?  

Second, asking or requiring an employee or applicant’s social media log-in information reminds me of the fictional character “Big Brother” from George Orwell’s novel 1984. In that novel everyone was under complete surveillance by the authorities. Against this backdrop, is this the setting an employer wants to create for its employees? 

Conversely, is this the setting that is going to attract the best candidates? For example in Jason Yormarck’s blog post “Asked For Your Social Profile Passwords In An Interview? Look The Other Way notes: 

Asking for your Facebook login is probably a pretty clear sign of a company that is not going to be pleasant to work for anyway … it’s a cop out for having to do real work to determine if a candidate is a good fit.

Conclusion

Implementing a social media policy to screen applicants or current employees can be done with the proper planning. And because of the number of legal pitfalls, such planning must include the assistance of experienced legal counsel.

But before seeking such counsel, employers should ask if such a policy makes business sense in the first place. In answering the question, it is likely that there are few circumstances where forcing a job applicant or current employee to share with his or her employer Facebook or social media log-in information as a condition of employment makes sense.