Accessing Facebook Through Employers: Is The Juice Worth The Squeeze?

Employers are becoming more aware of the impact of Facebook and the type of information it can reveal. Some employers use Facebook to find background or character information about their employees or job applicants. Other employers use Facebook to find out whether employees have disclosed information about the employer’s business. Some employers are taking it a step further by requesting that job applicants and/or current employees disclose their Facebook user name and password. Other employers are asking applicants and/or employees to "friend" its human resource manager or log into a company computer during interviews to view their Facebook content.

 

This forced friendship has raised critical concerns over the legality of such a practice. Disclosure of personal account information could invade an employee or job applicant’s right to privacy. In some states, like California, for example, the right to privacy is strongly recognized by the California Constitution, leaving little room for California employers to justify the need for an employee’s Facebook information. Because California courts apply a "balancing test" to evaluate the need for private information against the reasonable expectation of privacy, it may be difficult for California employers to advocate for the disclosure of such information, unless there is a compelling need.

This practice has also raised concern over the likelihood of greater discrimination lawsuits against employers. Employers could be held liable for discriminating against employees or job applicants based on seeing their Facebook information revealing a protected class, such as their age, religious affiliation, or sexual orientation. Some employers may be accused of not hiring a job applicant based on that protected class or taking adverse action against an employee based on that information.

On the flip side, some employers justify the importance of access to Facebook information, for example, as part of their duty to thoroughly investigate internal complaints that may trigger the disclosure of information contained on an employee’s Facebook page. If, for example, an employee is accused of disclosing confidential company information and/or disparaging the company on Facebook, employers may be compelled to gain access to an employee’s Facebook account in order to substantiate or invalidate the complaint and fulfill their obligation to investigate. However, because the right to privacy is highly regarded, especially in California, employers may have to overcome tough hurdles to justify the need to access Facebook information to support the position that it can be a vital part of an internal investigation.

These concerns have triggered proposed legislation in California and other states like Maryland, Massachusetts and Connecticut. In California, a state senator is introducing legislation that would prohibit companies in California from soliciting Facebook passwords from current employees or job applicants. The state measure would also bar employers from requiring access to employees’ and applicants’ social media content, and prevent employers from requiring log-ins or printouts of that content for their review. In Maryland, a similar bill is also being proposed after a government agency requested its job applicants to browse through their own Facebook accounts with an interviewer present. In Massachusetts, a state representative filed a similar bill that covers personal e-mail in addition to social media, which would bar employers from "friending" a job applicant to view protected Facebook profiles. In Connecticut, a senator is writing a similar bill that would bar employers from asking job applicants for their Facebook or other social media passwords. Some are, in fact, seeking guidance from the Equal Employment Opportunity Commission and U.S. Department of Justice to address whether this practice would violate any privacy, fraud or anti-discrimination laws.

 Employers who request Facebook information will have to face some real challenges, especially in states like California. Employers must be careful about how they selectively ask for information, ensure that the information they are seeking is absolutely critical, establish that there may be no alternative source for the information and further implement a clear and practical social media policy that is enforced in a uniform and non-discriminatory manner. Employers must weigh the advantages of being a Facebook "friend" to the potential problems that could arise by seeking access to an employee’s Facebook information. Because this forced friendship may open the door to privacy and/or discrimination concerns, employers must be cautious about implementing a practice requiring such disclosure. Otherwise, employers may be forcing a friendship that may create more exposure to liability than it is worth.

 

 

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