Pending Law Will Ban Employer Facebook Password Queries

Posted April 30, 2012 in Labor and Employment by

The Maryland legislature this month passed a law banning employers from asking employees or applicants to disclose their Facebook passwords, in response to consumer outrage over a practice that appeared to be spreading nationwide.

  • Maryland Department of Public Safety had been asking for social media passwords from applicants
  • If signed by governor, law to become active in October
  • Asking for passwords could violate existing laws and expose employers to discrimination liability

 

Stinging Backlash

The Maryland law comes in response to complaints about correctional facilities asking applicants to give up their passwords, so they could be screened for gang affiliations or other illegal activity. There have been additional news reports popping up nationwide about employers requesting (or demanding) the Facebook passwords of applicants and employees.

The news sparked stinging backlash from privacy advocates, employment attorneys and Facebook itself, whose chief privacy officer noted that asking for a password is a violation of the social media site’s terms of service.

Maryland Governor Martin O’Malley hasn’t yet indicated if he will sign the new law, but even if he doesn’t, employers already put themselves on shaky legal ground by asking applicants or employees for private passwords.

James Rubin

“Anytime an employer accesses information that is not relevant to the job as part of its recruitment process, it opens itself up to a potential claim for discrimination,” says James Rubin, an attorney who maintains a blog on Maryland employment law. “For example, assume that an employer sees old (and private) pictures of an obviously intoxicated applicant, erroneously concludes he or she is an alcoholic and decides not to hire the individual on that basis. Recovering alcoholics are protected by most anti-disability discrimination laws. The employer’s over-broad inquiry may have lead to a legal claim. There may be other liability under other law, including breach of privacy claims and violation of the Stored Communication Act.

 

Senators React

In March, U.S. Senators Richard Blumenthal (D-CT) and Charles Schumer (D-NY) released a statement suggesting that employers asking for passwords could violate a number of laws as well as open the employer up to discrimination and other liability. The senators called on the Equal Employment Opportunity Commission and the Department of Justice to launch an investigation of the practice.

“In an age where more and more of our personal information – and our private social interactions – are online, it is vital that all individuals be allowed to determine for themselves what personal information they want to make public and protect personal information from their would-be employers,” Schumer said in the statement.

With all that in mind, job applicants might want to think twice about an interview that comes with a password request. “Applicants should measure how much bargaining power they have and how badly they need a job when a potential employer asks for a social media password,” Rubin says. “If an applicant has a better alternative he or she should avoid an employer who wants to snoop into his or her private life. It may be appropriate to let the potential employer know that requiring a social media website password as a condition of employment may violate that website’s terms of service, may run afoul of the new Maryland law, and other laws.”

Obviously, any information you have publicly posted online, including non-private Facebook photos or wall posts, can be viewed by an employer with impunity.

If the law is signed by the governor, it will go into effect in October. Whether or not it is enacted, however, it would be prudent for any employee fired for failing to disclose a password to consult an attorney and see if there is a case against the employer.

“Fishing expeditions into an employee’s private life are both bad form and an invitation for discrimination and breach of privacy claims,” Rubin says. “The real question to me, regardless of liability, is do you want to work for an employer who wants to snoop through your private information and does not trust you simply to provide it yourself?”

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