Employer Requests for Passwords on the Rise

Published May 11, 2012

Robert Collins, a 30-year-old college student, applied for a job with the state of Maryland in 2010 and was asked for his Facebook password during an interview.
Collins testified in February before the Maryland legislature that he gave the interviewer his password because he needed the job. He said the interviewer then went on his Facebook page and began checking messages and photos for any gang affiliations.

Anecdotal stories such as Collins gave are popping up more often and have sparked outrage and concern over just what rights prospective employees have involving their social media pages.

U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) have said they are drafting legislation to stop employers from asking for Facebook passwords. They also asked the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice to launch a federal investigation into the trend of employers demanding Facebook passwords.

Just Say ‘No’
Bartlett D. Cleland, policy counsel for the Institute for Policy Innovation, says the practice actually puts the employer at greater risk because they could become one more entity to blame if employee information such as bank accounts or mobile phone records is accessed because they used the same password.

“More importantly, since when do we believe that our private conversations are somehow the purview of our workplace?” Cleland asked. “Did we ever require that a personal journal or diary be presented and scoured before employment before? Big Brother government, by so often ignoring our supposedly guaranteed freedoms, seems to have taught companies that they can be intrusive into our lives too,” he said.

Staffing and recruiting companies say job hunters should assume their potential employers will look at their Facebook and Twitter pages. And even if a company does not ask for an applicant’s passwords, it can review as much publicly available information as it can find about applicants on Facebook.

Lee Tien, a senior staff attorney with the San Francisco-based Electronic Frontier Foundation, says more employers are using this tactic and it seriously compromises a user’s privacy and opens them up to ongoing problems.

“We think it’s wrong for an employer to ask for this information, and the general public thinks it’s wrong,” Tien said. “We think that the potential employee should say ‘No’ if they’re ever asked for their passwords. However, we know that in these tough economic times, potential employees sometimes don’t offer that option. But let me reiterate, the public is stunned by this tactic,” he explained.

Password Requests Another Matter
Facebook calls the profile-access practice “distressing” and has recently amended its Statement of Rights and Responsibility (the legal terms to which users agree each time they access the site) to make it against company policy to share or solicit your account password.

Charles Owens is the Michigan director of the National Federation of Independent Businesses, which lobbies for small business owners. Owens said the NFIB has no official policy on employers asking for Facebook passwords.

“Speaking personally, if an employer asked me for my password, I would tell them to go pound sand,” Owens said. “If they want to send me a friend request, I would accept it and they could feel free to view my posts and profile in that venue. A password is a whole other matter.”

Current Laws ‘Poor Fit’
The laws that may regulate employers and their claim to Facebook passwords are a poor fit for social media, said Ann Hodges, a professor of law at the University of Richmond.

Hodges said some might suggest there is no need for regulation, as employers have the right to ask and employees have the right to comply or refuse, and either course could hurt their chances of being hired.

“Prior to the digital age, employers had far less ability to acquire information about employees’ private lives,” Hodges said. “With increasing technology, the potential for intrusive examination of private lives is far greater, and as a society we must determine whether to regulate and if so, how.”

Hodges said many states have statutory or common law protection. But Hodge said if Facebook users do not have adequate privacy settings on their social media sites, there may be no reasonable expectation of privacy.

“An employee faced with the question might ask whether it is a condition of employment to provide the password,” Hodges said. “If the employer responds yes and there is a cause of action for invasion of privacy in the state, the employee’s legal claim will be stronger. However, even the question might result in the employee not getting the job or being disciplined, and proof that it was based on that factor might be difficult, even if unlawful in the particular state.

Kenneth Artz ([email protected]) writes from Dallas, Texas. Tom Gantert ([email protected]) is senior capitol correspondent for the Michigan-based Mackinac Center for Public Policy.

Internet Info:

“Blumenthal, Schumer: Employer Demands for Facebook and Email Passwords as Precondition for Job Interviews May Be a Violation of Federal Law; Senators Ask Feds to Investigate,” Sen. Richard Blumenthal Press Statement, March 25, 2012: http://blumenthal.senate.gov/newsroom/press/release/blumenthal-schumer-employer-demands-for-facebook-and-email-passwords-as-precondition-for-job-interviews-may-be-a-violation-of-federal-law-senators-ask-feds-to-investigate

“Statement of Rights and Responsibilities,” Facebook: http://www.facebook.com/notes/facebook-and-privacy/protecting-your-passwords-and-your-privacy/326598317390057

“Want A Job? Password, Please!” Meredith Curtis, American Civil Liberties Union of Maryland, February 18, 2012: http://www.aclu.org/blog/technology-and-liberty/want-job-password-please