Social media has come to play an increasingly important role in
the hiring process of new employees. Employers are scouring
Facebook, Twitter and other social networking websites to weed out
applicants. Recent reports have shed further light on this
practice. Some employers have gone so far as to ask applicants to
provide them with their usernames and passwords to their personal
social media accounts or have asked that applicants log into their
accounts from a company computer during the interview. Employers
who are engaging in this practice should be aware that Maryland has
become the first state to pass a bill prohibiting this practice,
entitled the User Name and Password Privacy Protection and
Exclusions Act, and other states are considering similar
The Maryland bill provides that an "employer may not
request or require that an employee or applicant disclose any user
name, password, or other means for accessing a personal account or
services through an electronic communications device", which
includes computers, telephones, personal digital assistants and
other similar devices. Upon its signing by the Governor, the bill
will take effect on October 1, 2012. Notably, however, the bill
does not provide that employees and applicants who were asked for
their user names and passwords have a private cause of action
against their employers.
Additionally, several states, including California, Illinois,
Michigan, Minnesota, New Jersey, New York, and Washington, are
considering proposed legislation that will specifically prohibit
employers from making requests to access social media accounts. In
Michigan, the bill prohibits an employer from "request[ing] an
employee or applicant for employment to disclose access information
associated with the employee's or applicant's social
networking account." Unlike the Maryland bill, the Michigan
bill does permit an individual to "recover actual damages or
$1,000.00, whichever is greater, and reasonable attorney fees and
court costs." Further, the bill makes requesting such
information a misdemeanor punishable by imprisonment or a $1,000
fine, or both.
Aside from being aware of the passed and pending legislation,
employers should understand that reviewing the social networking
accounts of prospective employees puts them at risk to claims that
decisions not to hire were unlawful discrimination or retaliation
for activity that is protected by law. Existing laws prohibit
employers from basing their hiring decisions on a person's age,
race, national origin, religion and marital status. In Michigan,
the Elliott-Larsen Act also prohibits discrimination based on
height and weight.
Social media has allowed employers to gain more access about
potential employees than ever before. But care needs to be taken to
make sure that federal and state laws are not violated either
during the employment screening process or thereafter during
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Though the two guides are quite similar in form and content, the November publication further specifies the rights of applicants and employees under federal laws such as the Fair Credit Reporting Act when an employer runs a background check.
In prior articles, we have discussed various decisions by the National Labor Relations Board ("NLRB" or the "Board") protecting employee social media activity as concerted activity under Section 7 the National Labor Relations Act (the "Act").