Monday, March 26, 2012

Gimme Your Password

The Associated Press reports that employers are increasingly asking applicants to provide their Facebook usernames and passwords during the hiring process.  While this practice may not yet be common, it’s interesting that a significant number of employers believe information available on an applicant’s semi-private Facebook page will be helpful in their hiring decisions.

From a legal perspective, it’s unclear whether this employer practice, standing alone, violates any legal rights.  If the practice becomes widespread, however, employees’ lawyers may want to challenge the practice by using existing common law claims, such as claims for invasion of privacy.  Alternatively, existing statutory claims may offer a legal basis for claims.  For example, viewing an applicant’s pictures from a night on the town might create the risk of a claim under Minnesota’s prohibition against employment decisions based on the “use or enjoyment of lawful consumable products.”  One could also easily see plaintiffs’ lawyers creatively using the practice of viewing social media postings—public or private—to advance discrimination claims (see a New York Times article on a lawsuit involving the University of Kentucky here). 

It’s also possible that state and federal lawmakers will introduce legislation to prohibit or control employers’ ability to ask for or use personal social media-based information. Employers should keep watch for such legislative initiatives.

Practically speaking, it seems unlikely, except in certain limited circumstances, that viewing information about an applicant that is wholly or partially hidden from public view behind privacy barriers is really necessary to make a hiring decision.  Employers’ processes for screening applicants, checking references, and conducting background checks should suffice.  If they don’t, it is likely that more will be accomplished by improving the applicant screening process than by looking at Facebook.  While not without risks (see UK lawsuit), a better case can be made for viewing an applicant’s public social media profile.  If an applicant’s public profile reveals embarrassing information, it may indicate that the applicant has poor judgment or lacks an appropriate level of professionalism.

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