Two weeks ago, we posted on how employers viewing employees’ or job applicants’ Facebook pages could violate the Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from obtaining or using certain types of genetic information. We didn’t know the issue of employers viewing applicants’ Facebook pages — and particularly requiring their passwords — was about to BLOW UP.
Since our post, the issue has been the subject of Congressional hearings, proposed legislation, a statement by Facebook, and lots of articles, blogs and tweets. Many have pointed out that requiring a Facebook password (1) may be illegal, (2) is an invasion of privacy, and (3) gets employers involved in issues they usually seek to avoid. While these points are true (and are briefly explained below), the real question is: Does demanding a Facebook password really serve an employer’s best interests? Put simply, is it a good idea?
If requiring a Facebook password is illegal, it is a bad idea. Under the federal Stored Communications Act, it is illegal to access electronically-stored communications without authorization. If an employer requires an applicant to provide a Facebook password or access to a private site, will that be considered a “coerced” and therefore “unauthorized” access? Even if not, members of Congress and of numerous state legislatures have announced plans for legislation to ban employers from requiring job applicants to provide a password or access to a private Facebook account. Whether any legislation is enacted (or is really necessary), an employer who requires Facebook access now is swimming in dangerous, swirling and uncharted waters.
Likewise, an employer is enmeshing itself in potentially troublesome issues by barreling into a private Facebook page. It is telling applicants they have no truly personal or private life, that the employer is “Big Brother” and it will intrude on privacy as it sees fit. It might lose good applicants who refuse to permit access, or who are so turned off by the request they withdraw their application. Further, if certain lawful (but undesirable) activites found on Facebook are held against the applicant, the employer could be violating state laws that prohibit employment decisions being based on these lawful activities.
Such an employer is also “taking on” Facebook. Facebook stated last Friday that it will “take action to protect the privacy and security of [its] users…” Will Facebook sue you? Maybe not, but is it worth the risk — or even the bad PR?
Further, accessing a private Facebook page risks drawing claims of discriminatory failure to hire. People commonly say it is “illegal” to ask about a job applicant’s race, age, religion, national origin, or other statuses protected under federal or state laws. While merely asking the question is not illegal, if you cannot legally use the answers in making a hiring decision, why have the information? All that does is position an unsuccessful applicant to complain that he was not hired due to the protected status. If you may learn things on a private Facebook page that you would purposefully not ask about in an interview, aren’t you just undermining your own good practices on interviewing?
With all these downsides, is there a significant upside to requiring Facebook passwords? The benefits seem marginal at best. There might be an exceptional situation where viewing a private Facebook page is truly necessary. But elsewhere, you can get all the information you need by first making smart determinations on what skills and experiences are needed for a job, then using a thorough job application, then conducting thoughtful interviews, and finally by following up with references and prior employers. It seems unlikely an employer would find something new on a private Facebook page that would make it want to hire someone; but it could find things that muddy the waters in an unhelpful way. If things that show up are so concerning you would not want to hire an otherwise good candidate, those things should be able to be brought out in an effective interview.
Here’s a better tactic: Review publicly available Facebook pages (and other social media presences) after interviews identify the best candidate. If those raise legitimate concerns, then the applicant does not have the basic good judgment to keep their personal (and perhaps questionable) activities private. That is someone you reasonably may not want to hire. But, if they have shown they can keep their private life private and out of the workplace, isn’t that a positive attribute of a good employee? Isn’t that the type of employee you want?