With social media in today’s society, everything counts in large amounts.  And that goes for the workplace, too.

A firestorm was unleashed last week when the Associated Press ran a story about job seekers being asked to provide their Facebook usernames and passwords in the application process.

Some employers are clearly beyond just browsing a job candidate’s publicly-available profile after a Google search and are instead intent on finding out all the detail that’s maintained on a person’s private profile – even if they stand over the shoulder of the applicant while he or she logs in personally and accesses his or her profile in front of the interviewer.

So much for a person’s employment history and education taking center stage during the interview process.

Since the AP article last week, there’s been an outcry about both the appropriateness and the legality of this practice.  The American Civil Liberties Union and privacy groups everywhere are speaking out against what they see as an egregious and offensive intrusion into the private lives of those individuals.  Even Facebook issued its own statement last Friday, saying that requests for an individual’s Facebook profile or private log-in information undermines the privacy expectations and the security of both the user and the user’s friends and violates Facebook’s terms of use.  Facebook even threatened to initiate legal action where appropriate to protect its users, although how it can sue a non-member in such a way remains unclear.

Privacy advocates and Facebook aren’t the only ones complaining.  Several legislators, including Senator Richard Blumenthal, D-Conn, have indicated they are already drafting legislation to halt this approach, or plan to do so soon.  Many of those same legislators also are urging the Equal Employment Opportunity Commission (EEOC) to scrutinize the practice.

There’s no doubt that employers need to think carefully about whether it’s a good idea to ask a potential job applicant (or even a current employee) for their Facebook username and password, or request other personal, social-networking access information.  Not only does potential legal liability come into play, but other considerations are a factor, including the message that you send to your applicants and the public by doing so.

That said, the difficulty employers have in the hiring process is often overlooked.  On one hand, employers have to weigh the choice between not doing a little research into the people they are considering to decrease the chance of being accused of rejecting an applicant because they find a propensity for union activity or a protected discriminatory characteristic.  Or, on the other hand, actually going through with the check to avoid hiring someone who may have a history of negative behavior which could adversely affect the employer later, whether it be a track record of saying disparaging things about prior employers or about a known connection to violence.

In an effort to strike the best balance, many employers have started to use third-parties to vet this information.  That way they can find out what they want with regard to specifically-identified concerns, while shielding themselves from finding out things they aren’t supposed to base decisions on.  Of course, even if a third-party accesses the site, privacy concerns remain for the person whose profile is being accessed.  And, if the searching isn’t done consistently, that can be a big problem, too.

Taking someone else’s keys involves responsibility and forethought, which means consulting competent legal counsel to provide guidance on the prudence of engaging in this practice.  This is particularly true given the way employment law is constantly changing and often playing from behind to keep up with the ways in which technology impacts the workforce.

Drive safely employers.



Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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