Passwords and Privacy: Don’t Ask, Don’t Tell

Social media offers employers the opportunity to learn more about job applicants than can be gleaned in an interview. In some cases, employers even require applicants and employees to provide their social media account user names and passwords to conduct background research. This practice has recently come under fire. Robert Collins, for example, testified before the Maryland House of Representatives that the Maryland Department of Public Safety required him to provide his Facebook login and password during his interview. The interviewer said that he needed to look through his messages, wall posts and photos to make sure Collins was not associated with a gang. Collins complied because he needed the job, but left shortly thereafter. Eight states, including Maryland, have since enacted legislation to prevent such practice and, as of July 31, 2013, similar legislation has been introduced or is pending in at least 24 additional states.

This push for legislation may be unnecessary, According to surveyed C-level executives and human resources professionals from corporations throughout the U.S., the overwhelming majority of private employers never ask for social media logins as part of the hiring process. The recent state laws are, according to Littler, “a solution looking for a problem.”

What is more, the sharing of passwords — voluntary or not — violates the terms of most social media sites. Facebook’s policy states, for instance, “… you will not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account.” Facebook has threatened to take legal action against employers that require Facebook passwords of job applicants.

The fact remains, however, that employers must comply with state password privacy legislation — a particular headache for multi-state companies. Each state defines its own terms, scope, and remedies for enforcement. Some of the laws provide exemptions for internal investigations; others do not. Many create more questions than they resolve about maintaining personal privacy in public forums.

As the law evolves to catch up with the social media era, be aware of the changes that affect your company and consult with your legal counsel before requesting access to an employee’s social media account. Being informed is the best way to protect the interests of your company as well as its employees.

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