Poking Into Applicants’ Facebook Accounts Is Dangerous

By Joe Leibovich
(901) 328-8269
jleibovich@shuttleworthwilliams.com

Some employers want to be friends with job applicants. And that’s a dangerous situation.

In an effort to get to know applicants better, some employers have started asking for potential employees’ Facebook passwords, so they can gain access to online posts and other information. The thinking is that this will really let the employer know a lot more about the people they may hire than a standard interview would.

This may sound like a good idea, but it is a volatile one.

First, privacy advocates are screaming that this is a massive violation of individual rights, and it is likely that companies that engage in this practice will receive some negative publicity.

But there are also legal issues in play.

According to the Associated Press,Senators Chuck Schumer and Richard Blumenthal of Connecticut have suggested that this practice is a violation of the federal Stored Communications Act or the Computer Fraud and Abuse Act, and are requesting the Department of Justice and the EEOC investigate the practice.  There are also states considering legislation that would prohibit such inquiries.  Having someone’s password gives you access to more than their posts.  It lets you read private correspondence and messages.  This, on its face, seems to be overreaching and an invasion of privacy.

But even if this practice is legal, is it advisable?  The answer to that question is likely no.  Facebook profiles and postings contain a gold mine of information, certainly.  But some of that information is material potential employers should not have and should not want to have.

Facebook postings can contain information on matters that employers are prohibited from asking about in an interview, such as age, religion and disability status.

“Great!” some employers think.  “This gives me data I want without having to directly ask about it!”

Well, that sounds good. But is it really?  Having this data also opens up employers to discrimination claims.  An applicant who is rejected for valid reasons could easily point to data on their Facebook postings that show they have a medical condition, or that they are over 40, and claim that is why the hiring decision was made.  Can employers eventually overcome that in court?  Maybe.  But why should they give plaintiffs that extra weapon to muddy up the water?

Employers have many perfectly legal tools to gather information on applicants that do not expose them to this potential level of liability and the expense of litigation, whether it is frivolous or not.

It seems that the best practice for employers is to be anti-social when it comes to social media and potential employees.