Can Your Employer Demand Your Facebook Password?

Posted March 20, 2012 in Labor and Employment by

You’re all set for the big job interview– suit pressed, fingernails trimmed and all the Facebook photos with the keg and the beer bong set to private. You think you nail the interview– but next thing you know, your prospective boss demands your Facebook password, with which she could examine in detail all your glorious St. Patty’s Day indiscretions. What do you do?

  • Evidence of employers asking for social media passwords
  • Law unsettled and varies by state
  • Employers could be violating a number of privacy statutes

 

Legal Pitfalls

Some employers have been asking for social media passwords from their employees and job applicants, according to anecdotal evidence. Not only does that give the boss a look at potentially compromising photographs, there is also the matter of private messages and Facebook email to consider. Is it legal for employers to demand that much access?

It’s difficult to make a blanket judgement because every state is different and social media and Internet law is still evolving. However, in general, employers are on very shaky ground demanding access to employee or applicants’ personal social media accounts.

“You can think of several potential legal pitfalls employers can fall into quite easily,” says John Barr, an attorney with Jackson Lewis in Richmond, Virginia. To name a few, companies could be in danger of violating various anti-eavesdropping acts and privacy acts, as well as the illegal surveillance provisions of the National Labor Relations Act, depending on how they monitored the information in your account.

Attorney John Barr

Attorney John Barr

If an employer were to fire an employee for failing to turn over a password, they could make themselves liable for a wrongful termination suit. It’s less clear if a company would be liable for not hiring someone for not submitting a password, but it could certainly be embarrassing. “Do you really want to be in front of a jury saying we wouldn’t hire a person because they wouldn’t give us a private password?” Barr asks.

 

Breach of Farmville Privacy?

The amount of information at stake could be considerable “You can chat on Facebook, and send and receive private email,” Barr says. “By getting the password an employer has access to all of those things.”

It’s less clear what the value of seeing your personal information would be, and if it’s worth the risk. “I’m not sure what employers are gaining by this, unless you want to find out what an employee had for supper the night before,” says Barr. Nevertheless, incidents and official reactions to them have been popping up in various spots:

The evidence of employers actually doing this has been isolated so far, and if businesses are wise they will steer clear. “Employers should think long and hard about whether or not they really need access to an employee’s Facebook page,” Barr says. “Just as a blanket condition of employment, I’d be hard pressed to think of a justification, especially given the various legal pitfalls.”

 

You Can’t Fire Me, I Quit

Social media is a great way to share information with friends and family– and a great way to get in trouble.

First of all, it’s never a good idea to post evidence of yourself performing stupid, over-indulgent, illegal or pornographic acts on the internet to begin with. However, if you are compelled to share your weekend activities with the world, you do have every right to do so, and to some extent control who views your information.

But remember, Facebook is never fully secure– someone else who is authorized to see your posts could always pass along incriminating pictures or statements to your boss (or to the district attorney’s office, for that matter).

And fair warning: Stuff you send or post using your work computer is another matter entirely. Employers generally have the ability and the right to monitor how their resources are being used. Lay off the IM conversations about how much you hate your boss.

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