Late last month several US Senators asked Attorney General Eric Holder and the Equal Employment Opportunity Commission to investigate the legality of employers asking potential employees for their Facebook passwords as a condition of employment. Soon laws will be in place to clear up the confusion. However, regardless of the outcome, here are four reasons why employers should just avoid asking an employee for their Facebook password in the first place. These excerpts were taken from an opinion piece appearing in the 4/8/12 edition of the Chicago Tribune by Jeff Nowak, Partner and Co-Chair of Franczek Radelet’s Labor and Employment Practices Group.
- It could expose the employer to discrimination claims. A fundamental best practice for employers when soliciting information about job candidates is to make certain that any inquiries are “job-related”. When employers access a candidate’s social media account, they likely are exposed to information that is not job-related and not to be considered in an employment decision.
- Employers can also be exposed to privacy claims. Mr. Nowak points out that social media is the new “water cooler of the workplace”, where employees gather to share personal commentary and complaints. New legislative issues aside, employers accessing social media could be violating existing anti-eavesdropping and privacy laws depending on the state.
- Most employers are not prepared to handle private information. If an employer misses signals in social media accounts that an employee may engage in conduct harmful of others, will the employer face liability for negligent hiring practices? Also, once an employer has an employee’s password they are responsible to protect it.
- Employer = Big Brother. Legal issues aside, think of the messages an employer sends to prospective employees by asking for access. First, it suggests that you lag in your understanding and acceptance of social media, and, second, it says immediately upfront that trust is an issue.
Mr. Nowak summarizes, “Requiring Facebook passwords is not good business.” It is highly unlikely to bring meaningful benefits. And, people can erase their media posts in seconds, so why go to the trouble? HRInsights agrees.