EMPLOYEE PRIVACY RIGHTS
States tackling issue of employers requiring applicants to provide Facebook passwords

Earlier this month, in a post titled “If you want the job, give me your password,” employment attorney Charlie Plumb discussed the emerging trend of some employers asking applicants for access to their private or password-protected social media sites, like Facebook. As part of the selection process, they want to review applicants’ social network sites, such as Facebook, to look for inappropriate photographs, statements or activities, which presumably will figure into their decision of whether to offer the person a job.

As this growing practice has gained more public and media attention, the reaction, unsurprisingly, has been ranged from general concern to indignant outrage. As Charlie pointed out in his post, two U.S. Senators asked the EEOC and the Department of Justice to review the issue, specifically asking the DOJ for a legal opinion as to whether the practice violates the Stored Communications Act (SCA) or the Computer Fraud and Abuse Act (CFAA). A bill was even introduced in Congress, titled “Mind Your Own Business on Passwords,” seeking to prohibit employers from accessing workers’ Facebook passwords; however, it was easily defeated in the House of Representatives. Despite the proposal’s defeat, some senators are working on similar legislation.

Since then, state legislatures have taken up the issue. As reported by fellow law blogger Molly DiBianca, Maryland passed legislation earlier this month that “prohibit[s] employers from requesting or requiring an applicant or employee to turn over his or her password to a social-networking account, such as Facebook.”

This development is not entirely surprising in light of the negative publicity given to the Maryland Department of Corrections, which allegedly required applicants to turn over Facebook passwords in order to obtain employment. The ACLU rallied on behalf of the employee and the DOC officially halted the practice. Similar legislation is currently pending in California and Illinois. I imagine it won’t be long before other state legislatures see the introduction of similar bills, so stay tuned.

She was right as was Charlie who made a similar prediction in his post a few weeks ago: “We should anticipate possible further legislation limiting an employer’s ability to require a candidate to provide them with access to their private social media.”

Late last week, a Senate committee in California’s legislature gave the green-light to a similar proposal. According to The Sacramento Bee, Senate Bill 1349 “bans employers and educational institutions from asking prospective or current employees and students to hand over their user names and passwords or provide access to the account.” Michigan (H.B. 5523), Minnesota (H.F. 2963), Missouri (H.B. 2060), New York (S.B. 6938), South Carolina (H.B. 5105) and Washington (S.B. 6637) all have proposals being considered by their legislators. At this time, it appears that Oklahoma is not among the states actively considering such legislation.

Tags: access, applicant, Congress, Department of Justice, EEOC, employer, Facebook, interview, legislation, password, social media