Employers Could Unlike Outcome of Facebook Password Requests

No court has specifically addressed the legality of a social media background check. 'Privacy is very much a floating concept,' one expert says.

With Facebook alone having more than 800 million registered members, hiring managers might need only a few mouse clicks to discover a nugget of information about a job applicant.

It appears to be a practice that’s not disappearing any time soon. Some 48 percent of employers admitted using social networking websites as part of their background screening process, according to a recent survey by Employment Screening Resources of Novato, California.

But alarmed by reports that employers have asked job applicants to divulge passwords to Facebook and other social media sites, federal and state lawmakers are acting to prevent what they see as background screening run amok.

“It is completely unacceptable for an employer to invade someone’s personal social media accounts,” says Leland Yee, a California state senator who in February introduced the Social Media Privacy Act, which prohibits employer requests for passwords to social media accounts. “Not only is it entirely unnecessary, it is an invasion of privacy and unrelated to one’s work performance or abilities.”

Yee’s bill does not protect those portions of an applicant’s social media page that are open to the public. But employment screening experts and lawyers say that employers might be vulnerable to a discrimination lawsuit if they look at a social media page that includes information about, for example, a candidate’s age or ethnicity.

“You’re setting yourself up for a claim,” warns Irving Geslewitz, a principal in the law firm Much Shelist in Chicago.

“We tell clients that if they want to look at the Internet, they should approach it with caution because there are a lot of land mines that can blow up,” says Lester Rosen, an attorney and president of background-checking firm Employment Screening Resources.

Rosen says employers have a slim chance of finding something job-related in a social media search. “Generally speaking, there’s just a lot of junk on the Internet,” he says. “It’s hard to find what you’re looking for.”

That didn’t stop the city of Bozeman, Montana, in 2009 from trying to implement a policy requiring all job applicants to disclose their social media user names and passwords. “This is just a component of a thorough background check,” a city official said, noting that the city could be liable for hiring a child molester when there was “some sort of information out there on the Internet that kind of showed those propensities.” But the city backed off in response to a public outcry.

The American Civil Liberties Union intervened last year after learning that the Maryland Division of Corrections asked a correctional officer to provide his Facebook password during a recertification interview. The request was “a frightening and illegal invasion of privacy,” the ACLU said in a letter to the correctional agency.

Earlier this month, Maryland became the first state in the nation to pass a privacy law that bars employers from requiring workers and job applicants to disclose social media account information as a condition of employment.

No court has specifically addressed the legality of a social media background check. “Privacy is very much a floating concept,” says Rosen. Password requests, he notes, appear to have been confined to government agencies that might have a heightened interest in finding skeletons in an applicant’s cyber-closet.

But in 2010, the New Jersey Supreme Court ruled that an employee of a home health care provider could reasonably expect that the email communications with her lawyer through her personal, password protected, Web-based email account would remain private. “A private employer who is not involved in prisons, policing or national security would have a hard time showing there is justification to overcome the privacy interest in password-protected content online,” Rosen says.

Geslewitz notes that two federal laws—the Stored Communications Act and the Computer Fraud and Abuse Act—prohibit unauthorized access to electronic information. Even if a job applicant complies with an employer’s request, the he says, the applicant could argue that the authorization was coerced.

A background check of criminal records and other public information “is going to get you as much as if not more than a Facebook page,” Geslewitz says.

Matthew Heller is a writer and editor based in Los Angeles. Comment below or email editors@workforce.com.

Workforce Management, June 2012, p. 16Subscribe Now!