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Employer Requests for Applicants' Online Access Gets Lawmakers' Attention

A letter sent to the Equal Employment Opportunity Commission asks that agency to issue a legal opinion as to whether asking for passwords violates current federal law.

March 27, 2012
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Two U.S. senators are calling on the Equal Employment Opportunity Commission and the U.S. Department of Justice to launch an investigation into a "new, disturbing trend" of employers demanding that job applicants turn over their usernames and passwords for social networking and email sites.

A statement issued by Sens. Richard Blumenthal, D-Connecticut, and Charles E. Schumer, D-New York, on March 26 said employers are asking job applicants to turn over their usernames and passwords for social network and email websites to gain access to personal information such as private photos, email messages and biographical data "that is otherwise deemed private."

This "disturbing practice represents a grave intrusion into personal privacy that could set a dangerous precedent for personal privacy and online privacy, making it more difficult for Americans to get jobs, and expose employers to discrimination claims," said the statement.

Blumenthal said, "I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks. A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy."

In their letter to U.S. Attorney General Eric Holder, the senators say, "Two court decisions have found when supervisors request employee login credentials, and access otherwise private information with those credentials, that those supervisors may be subject to civil liability under the Stored Communications Act."

Although these two cases involved current employees, "the courts' reasoning does not clearly distinguish between employees and applicants," says the letter.

The letter asks the Justice Department to issue a legal opinion as to whether asking passwords violates federal law. A Department spokesman had no comment.

A separate letter sent to the EEOC also asks that agency to issue a legal opinion as to whether asking for passwords violates current federal law.

Carol Miaskoff, assistant legal counsel for the EEOC, said the senators' letter is "going to get prompt attention."

Miaskoff said the EEOC is watching the issue "very closely," and the senators' letter is clearly "elevating it within the organization," but it is too early to say what the agency plans to do in response, she said.

The senators said they also are drafting legislation that "would seek to fill any gaps in federal law" that allow employers to ask for personal login information from prospective employees to be considered for a job.

The senators did not cite any statistical evidence to indicate how many employers are demanding this information. Miaskoff said she is unaware of data in this area.

Michael C. Schmidt, a member of law firm Cozen O'Connor P.C. in New York, said, "I haven't seen any real scientific, expansive studies done on the statistics, but my sense is we're not talking about a large number of employers who are engaging in the practice at this point."

"Not necessarily to minimize the concerns on the employee side of things, but I do think that the outrage and the perceived impact is overstated a little bit," he said.

Meanwhile, in a Web posting on Friday, Erin Egan, chief privacy officer-policy for Palo Alto, California-based Facebook Inc., said, "In recent months, we've seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people's Facebook profiles or private information. 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."

Miaskoff said also that under current law, employers can expose themselves to EEOC charges—and potentially lawsuits—if they demand job applicants' passwords. This could occur in cases, for instance, where the employer gets the password, signs onto the applicant's Facebook account, learns the job applicant is a member of a protected class, and the applicant subsequently does not get the job, she said.

"It's really not a big leap to think, 'Now, gee, I didn't get the job because they knew about my religion,'" or a related reason, said Miaskoff. With an employer's access to Facebook, "it'll be easier than it sometimes is to otherwise challenge" a hiring decision.

An expert has warned that municipalities that have policies requiring job applicants to provide social media usernames and passwords as part of their employee background check could lead to invasion of privacy allegations, which often are championed by individual rights groups such as the American Civil Liberties Union.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

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