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Facebook: Double Trouble for Job Seekers and Employers? Privacy Concerns for Job Seekers and Discrimination Concerns for Employers

Facebook’s Privacy Settings May Not Be Enough

Most savvy job seekers know that they should keep their Facebook page set to private so that only their “friends” can see their status updates, photos and other personal information. However, that strategy may no longer offer enough privacy. The relatively recent practice by employers who either ask job candidates for their Facebook user name and password, or request that they log into their Facebook account on the employer’s computer during a job interview, is drawing interest from two members of Congress. Citing concerns about individual privacy and federal communication and employment laws, Senators Richard Blumenthal (D-CT) and Charles Schumer (D-NY) have asked the U.S. Department of Justice (DOJ) and the U.S. Equal Employment Opportunity Commission (EEOC) to launch an investigation into this practice. They will use the results of these investigations to introduce legislation to address these issues.

Coercive Tactics And Potential Violations Of Federal Communications Law

Some employers who make this request will advise the applicant that their participation is purely voluntary.  But how voluntary is it when a job is riding on the individual’s “cooperation?” How likely is it that an applicant who refuses this request will continue on through the interview process and receive a job offer?  In their letter to the DOJ, the senators write:

                “. . . An investigation by the Department of Justice and Equal Employment Opportunity Commission will help remedy ongoing intrusions and coercive practices, while we draft new statutory protections to clarify and strengthen the law.

               ". . . we must have an immediate investigation into whether the practice violates federal law – I’m confident the investigation will show it does. Facebook agrees, and I’m sure most Americans agree, that employers have no business asking for your Facebook password.”

The senators’ letter to the DOL also requests that the agency investigate whether this practice violates the Stored Communication Act (SCA) or the Computer Fraud and Abuse Act (CFAA). The SCA prohibits intentional access to electronic information without authorization or intentionally exceeding that authorization, and the CFAA prohibits intentional access to a computer without authorization to obtain information. Requiring applicants to provide login information to secure social media websites and then using that information to access private information stored on those sites may be unduly coercive and, therefore, constitute unauthorized access under both the SCA and the CFAA. In two recent cases, when supervisors requested employee login credentials, and then accessed otherwise private information with those credentials, the courts found that those supervisors may be subject to civil liability under the SCA.

 Employment Liability Concerns for Employers

Making a request for login credentials may be a double-edged sword for employers as it could expose decision-makers to discrimination lawsuits when an applicant’s Facebook page has been viewed but the applicant isn’t hired. While employers may think that seeing the information on an applicant’s Facebook page may help better assess the individual’s fit with the organization, determine how they will perform on the job, or raise red flags regarding the applicant’s suitability for the job (e.g., an applicant who applies for a job involving handling cash or other finance-related tasks has information on their Facebook page about their financial problems), employers will also have access to other information, such as religion, health, race, age, or genetic disposition, that should not be considered when making hiring decisions and which may be used to unlawfully discriminate against otherwise qualified applicants.

 In their letter to the EEOC, Senators Blumenthal and Schumer say, in part:

                “Facebook and other social networks allow users to control what information they expose to the public, but potential employers using login credentials can bypass these privacy protections. This allows employers to access private information, including personal communications, religious views, national origin, family history, gender, marital status, and age. If employers asked for some of this information directly, it would violate federal anti-discrimination law. We are concerned that collecting this sensitive information under the guise of a background check may simply be a pretext for discrimination.”

Proposed Legislation

Senators Blumenthal and Schumer plan to introduce legislation which would specifically ban the practice of employers asking current and prospective employees for their Facebook passwords. This legislation will be based upon the legal opinions requested from the DOJ and the EEOC.  Blumenthal said this bill will have some exceptions, such as exemptions for some federal and local law enforcement agencies, or national security departments. He said there would also be an exception for private companies with government contracts for highly classified work.

Posted 4/17/2012

If you have any questions or comments, please contact me at 414-423-1330 or via e-mail at:
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
Legislative Partner

Krukowski &
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
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