Maryland recently became the first state in the country to ban employers from asking both employees and job applicants for their social media passwords. The bill, which passed both houses of Maryland’s legislature, is expected to be signed by Governor Martin O’Malley, and take effect on October 1, 2012. The New Jersey Legislature is considering a similar bill, as are New York, Washington, California and Illinois.
Recent media and political attention have highlighted the issue of employers asking employees for social media passwords, although in practice such requests appear to be rare. Facebook’s Chief Privacy Officer, Erin Egan, has reported “a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information.” Such requests by employers may create bad press for companies, and it is likely the Equal Employment Opportunity Commission will soon issue guidance disfavoring such a practice. Likewise, such requests may violate the federal Stored Communications Act, if a court were to consider requiring employees to provide their passwords voluntarily to employers.
As an alternative to asking for social media passwords, many employers resort to the practice of searching employees and applicants online through the use of Google and other online search tools. However, employers should be aware that the use of online tools to vet or monitor employees and applicants is risky. Such searches may reveal employee’s protected characteristics, and could subject an employer to liability under Title VII of The Civil Rights Act of 1964 (“Title VII”), and state law, depending on the use of the information. Title VII makes it illegal for employers to ask a candidate about his/her nationality, religion, age, race, sex or disability during the hiring/interview process. As soon as an employer runs an online search and becomes aware of an applicant’s protected characteristic(s), the employer runs the risk that the applicant may claim a denial of employment to be wrongfully motivated by the characteristic.
The bottom line is that employers should be careful about gathering job-related information on candidates (and current employees) online. Employers should limit searches to information readily available to the public at large. Employers should also be careful to comply with all applicable state laws regarding background checks.