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As employment law constantly changes, the attorneys at Bean, Kinney & Korman stay up to date on the law as it develops. Our blog topics focus on those changes and what you need to know about them, ranging from severance agreements and the FLSA to social media in the workplace and recent court decisions. If you are interested in having us cover a specific topic, please let us know.

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A Warning for Employers Requiring Social Media Login Information

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A new trend that has emerged in the employment arena is employers asking applicants to provide their Facebook username and password or other social media login information during the interview process.  Other employers are making compliance with this new policy a condition of employment.

Many Facebook users have increased the security settings on their accounts so that very little, iif any, of their profile is visible to the public.  In response, some employers seek social media login information in order to log in to applicants’ Facebook accounts in order to look at the applicant’s profile and other information that cannot be viewed by the general public.

So as an employer, should you consider adding this practice to your interview process? Should employers ask existing employees for their social media passwords or login information to personal email accounts?

Employers should not ask applicants or employees for any login information for Facebook, other social media sites or personal email accounts.   Doing so may actually increase the employer’s exposure to a discrimination claim and may constitute a violation of state privacy laws. 

For example, if an employer requests login information of an applicant and then the applicant is denied employment, the applicant may claim that the employer denied him or her employment due to the applicant’s membership of a protected class, which the employer learned about from information it obtained on Facebook.

And the legal implications do not stop there. Such requests or requirements of employees and/or applicants may also violate federal laws, such as the Computer Fraud and Abuse Act and the Stored Communications Act, even if the login information was not required by the employer but was simply requested.  A request for this private information could be considered to be obtained under duress (the employee or applicant felt that they had no other option other than to cooperate or risk losing their job), which triggers federal statutes that prohibit the “unauthorized access” of a computer or communications.

But what if employees are using Facebook to connect with customers? Does that create an exception that allows employers to require the sharing of social media passwords?

Until employers have additional guidance on this privacy issue from the courts or the legislature, employers should not request passwords for social networking sites from employees or applicants, even if the employee is using these sites to connect with customers.

This issue has gotten attention on Capitol Hill and House Democrats are pushing for the Federal Communications Commission to have the ability to adopt a rule to prohibit employers from requiring job applicants or employees to disclose passwords to social networking sites.