Employers who require job-seekers to turn over their
Facebook passwords remain a mystery to me. Really, what are they thinking? As
if the potential negative publicity alone is not enough of a deterrent, you'd
think that employers would be aware that there are potential legal
implications, as well.
As the WSJ
Law Blog reports, Sens. Richard Blumenthal, D-Conn., and Chuck Schumer,
D-N.Y., took up the issue on a federal level. The Senators wrote to the EEOC
and U.S. Department of Justice, asking both agencies to investigate the
practice of requiring applicants to provide their social-networking-site log-in
information during the hiring process.
The letter to the U.S. DOJ sought a legal opinion as to
whether the practice violates the Stored Communications Act (SCA) or the
Computer Fraud and Abuse Act (CFAA). The letter cites Pietrylo vs. Hillstone
Restaurant Group, as support of the proposition that mandating Facebook
log-ins violates the SCA.
Potential Legal Violation
I agree with their assertion that Peitrylo would
support a claim under the SCA. In that case, the employer was found to have
violated the SCA when it accessed employees' private MySpace chat room.
Managers had obtained the password and log-in information of another employee.
That employee, a hostess at the defendant-restaurant, testified at trial that
she turned over her password to the managers only because she believed that
she'd be fired if she failed to accede to the request.
If the same logic were applied to applicants who are
"asked" for their passwords, the result would be the same--the
employer would be in violation of the SCA, just like the employer in Pietrylo.
This interpretation of the SCA is not universally accepted, though. The SCA is
a challenging statute and its application is difficult to predict.
That said, though, most employers do not want to be the
test case. To avoid potential risk under the SCA (and for a variety of other
reasons, legal and non-legal), employers should not "request" an
applicant's password for Facebook or other social-networking site.
Facebook
Facebook also is speaking out against the practice. On
March 23, the uber-popular site wrote
a blog post about the issue, stating: "If you are a Facebook user, you
should never have to share your password, let anyone access your account, or do
anything that might jeopardize the security of your account or violate the
privacy of your friends. We have worked really hard at Facebook to give
you the tools to control who sees your information."
Legislative Efforts
In Washington, there was one recent attempt to put an end
to this highly unpopular practice. According to the Orlando Sentinel,
Rep. Ed Perlmutter, D-Colo., introduced the proposal as part of a bill to
reform the Federal Communications Commission. House Republicans blocked the
proposed amendment on Tuesday, reported the Huffington
Post.
Blumenthal is also drafting on a bill that would prohibit
employers and prospective employers from requesting access to Facebook
accounts. California State Senator Leland Yee, introduced similar
legislation on Friday.
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog.
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