April 16. 2012 9:00AM

Employers should not ask for Facebook passwords

By Corey Witzel

  
As social media and its effects permeate the workplace, one recent phenomenon is continuing to attract attention: employers asking job applicants and existing employees for their social media passwords in order to delve into their personal backgrounds.

This practice is most prevalent with governmental entities, but is now also becoming more commonplace with private employers.
Social media vendors are clearly opposed to employers requiring this social media login information, and Facebook recently denounced the practice on its website.

Presently, there is no federal law prohibiting employers from requesting such social media login information. However, as a result of the recent negative publicity surrounding this practice, several states have recently introduced legislation that would prevent an employer from requiring employees and job applicants to disclose their social media login information.

Other interest groups, states and courts will undoubtedly start voicing opinions on this topic as well.

Given this legal uncertainty, it is understandable for an employer to feel confused regarding how best to monitor its employees' presence on social media. However, it is a questionable practice for employers to automatically request personal social media login information from its employees or job applicants.

There are several compelling reasons why:

1. Potential discrimination claims:

The type of information that could be unearthed is just the sort of personal detail that employers need to stay away from, as it is not likely to be job-related. An employee's or job applicant's personal Facebook account will likely reveal details about non-job-related protected status information such as age, race, religion or medical condition. If an employer, after accessing one's personal information, chooses not to hire such job applicant, or does not promote or increase an existing employee's salary, it is setting itself up for being accused of relying on that information in making its job-related decision.

2. Adverse effect on employee morale:

An employer who requests that employees disclose personal login information conveys the appearance of being "Orwellian." Do job candidates really want to work for an employer who gives off a first impression of being intrusive and controlling, especially with regard to one's personal life? And do existing employees want to stay in a job where their employer has an appetite to monitor their personal activities? The work-life balance usually coveted by employees is not furthered when the employer shows an inordinate amount of interest in one's life outside the workplace.

3. Better, practical alternatives:

In today's technology age, an astute employer can obtain a wealth of information about a job applicant or employee through less intrusive means. Comprehensive background and reference checks can be conducted, employment-related skills tests can be given, and independent job-related research through LinkedIn and other social networks can be performed, where the employer is accessing information the individual has chosen to share. Such methods will yield pertinent, job-related information that an employer has the right to know, without unearthing non-job-related personal histories.

4. HR consistency compromised:

Best HR practices always demand consistency in the application of employer policies and procedures. An employer requesting social media login information is likely establishing a workplace policy that will be inherently inconsistent. Even today, many applicants and employees do not have social media accounts. Is it thus fair to require the divulging of personal information for some individuals but not for others? In order to establish policy consistency, must an employer then glean personal information through other methods from those individuals who do not participate in social media?

5. Mitigation of future legal risks:

Given the future uncertainty regarding the legality of an employer demanding employees' social media login information, employers should pause before engaging in such activity. It is conceivable that this activity will be legally forbidden someday. Employers should guard against possible actions on their part that may be declared retroactively illegal in the future, so as not to give rise to future employment law challenges for past hiring and policy decisions.

Not all social media inquiries made by employers should be characterized as a desire to engage in unnecessary voyeurism. While an employer should not review an employee's Facebook page merely to discern personal information that is irrelevant to the workplace, there clearly are situations that may warrant reviewing all available information. Workplace investigations, such as claims of sexual harassment or workplace violence, are examples where personal information on Facebook conceivably may yield pertinent evidence for the investigation(s). In such circumstances, an employer may have a legitimate business reason to review an employee's social media presence and should thus have more leeway in requesting login information.

But a blanket request to obtain social media login information, absent a compelling, business or legal reason, seems counterproductive. There is a healthy difference between an employer's ability to know and its need to know. This difference should not be blurred unnecessarily merely because of advances in technology.

Corey Witzel is vice president of human resources and general counsel at EmPowerHR an Human Resources consulting and outsourcing firm with offices in Mequon and Chicago.

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