Picture a job interview, where a nervous applicant sits across a conference room table from a potential employer. Just as the interview is about to start, the interviewer opens up a laptop computer and pulls up Facebook.
If you can just give me your Facebook username and password, we can get started.
Theres something wrong with this picture. Yet, we still see news stories in which employers are demanding social media login information from job applicants. This scenario presents significant risks for the employer and the job applicant alike.
From the interviewees perspective, complying with the request has the potential to unlock all sorts of private information. Facebook pages often include photographs from weddings, honeymoons, class reunions, beach vacations, the ever-embarrassing Halloween party photos, and any number of other events. Most job applicants dont submit pictures of themselves drinking mimosas on the beach in a bikini, or dressed as Batman, along with their resumes. Pictures present just one issue. Facebook also has a private message feature which is practically the same as email or instant messaging. Would you let your would-be employer login to your private email account?
Some folks will argue that if applicants dont want to share the information, then they shouldnt have put it on the Internet. However, the applicants only put the information on the Internet based on the expectation that they would have a certain level of control over who views that information. Facebook has plenty of features to help users control their privacy, and limit who has the ability to view certain content. This expectation of privacy is expressly detailed in Face-books terms of service, which it calls Statement of Rights and Responsibilities. These terms also prohibit sharing of passwords, or otherwise giving other people access to an account, which segues nicely into the risks employers face in this situation.
The Stored Communications Act prohibits unauthorized access of certain computer systems.
Recently, a federal court in New Jersey held that an employer who pressured an employee into divulging her MySpace password could face liability under the SCA. Although the employee handed over the password, the pressure applied by her supervisor could constitute coercion and therefore the employers access of the MySpace page was unauthorized.
This area of the law is still developing, but its possible that an employer could face liability for coercing applicants to divulge social networking passwords under the pressure of the job interview process as well.
Maryland recently became the first state in the country to flat out ban the practice of requiring social media login information from applicants or employees. Many other states, including Pennsylvania, are also considering laws to specifically address this issue. Similar federal legislation, the Social Networking Online Protection Act, has also been introduced in Congress.
Employers do run the risk of discovering information that is generally off-limits during a job interview. For example, interviewers dont generally ask applicants whether they have kids, suffer from any serious medical issues, or what religion they practice. This information is often prominently displayed in Facebook pages however. Acquiring this type of information could
support a discrimination lawsuit down the road. And for employees, it could open them up to discrimination based on the information found on their Facebook pages.
All in all, employers and applicants need to remember that the interview process is a two-way street. If an employer demands access to something as personal as your Facebook page at a job interview, imagine what it will be like when you actually work there!
Thankfully, the practice of employers demanding Facebook passwords from applicants does not seem widespread. Employers, employees and job applicants should all be concerned about the significant risks involved. Employers and applicants are probably best served by avoiding the social media login discussion during job interviews altogether.
The information and opinions expressed in the article above are those of the author and do not represent the opinions of the Centre County Bar Association. This article is meant to convey general information only and should not be relied on or taken as legal advice pertaining to any individual situation or legal problem. Consult an attorney for legal advice about any specific question you may have.