Originally published in The Tennessean April 5, 2012
A growing trend among employers is requesting applicants' user names and passwords to gain access to restricted social media to investigate applicants during the hiring process.
In response to this trend, Facebook has implemented a new provision in its Statement of Rights and Responsibilities making it a violation to share or solicit password information. Illinois and Maryland have proposed laws that would essentially ban employers from requesting this type of information, and Tennessee is a likely candidate for a similar law.
The main arguments for and against these proposed laws center on constitutional privacy concerns; however, employers should consider that restricting hiring personnel's access to this type of information is not as harmful as some opponents say.
There are several federal statutes that prohibit employers from considering certain individual traits such as age, color, race, religion, sex, national origin, disability, medical conditions/information, and family history in making employment decisions. Social media, like Facebook, is likely to contain some or all of this information.
Also, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex or national origin. In most instances, employers are prohibited from considering any of these attributes during the hiring process. Again, all these are usually readily apparent on any given person's Facebook profile.
If employers are openly asking for user names and log-in information for various social media during the hiring process, they risk an employment discrimination claim by an applicant. There are many ways to judge an applicant's ability to perform a job without resorting to these types of social media investigations.
These proposed laws, however restrictive on employers' ability to deeply investigate its applicants, may save employers heartache down the road.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.