Facebook Inc. issued a statement on March 23 condemning employers who ask job applicants for access to their profiles on the social media site. The practice threatens users’ personal privacy and opens employers to a myriad of legal risks, Facebook said.
U.S. Sens. Charles Schumer (D-N.Y.,) and Richard Blumenthal (D-Conn.) seconded the motion on March 25, saying that they would ask the U.S. Department of Justice to investigate whether the practice violates existing laws. One day later, the U.S. Federal Trade Commission called upon Congress to restrict businesses from trading personal information about consumers online.
Daniel Prywes, a partner at Bryan Cave in Washington who represents employers, has been closely following the trend. He spoke to The National Law Journal about the legal risks involved and the legislative backlash in Congress and the states. His remarks have been edited for length and clarity.
NLJ: How long has this trend been going on of employers asking for the Facebook names and passwords of job applicants?
Daniel Prywes: I think this is sort of a natural evolution from the existing practice, where some employers will look at the public part of the Facebook Web site or social media Web site, and someone got the brilliant idea to ask for consent for full access. It’s certainly gained steam in the last few months.
I think this practice is primarily going on with respect to law enforcement and similar kinds of positions that are especially sensitive. I know it’s going on to some extent beyond that, but I think it’s concentrated in that area — which is not entirely unexpected, because we do subject certain kinds of job applicants for sensitive positions like Secret Service agents or national security or law enforcement to enhanced background checks.
NLJ: Why can’t job applicants just say no?
DP: Well, of course, they’re free to do so. But it’s a tight job market out there, and people want jobs. They’re fearful that if they say no, they’ll lose the opportunity. It’s sort of a Hobson’s choice they face — give up their privacy or give up a job opportunity.
NLJ: Why do employers want access to these Facebook pages?
DP: If you’re hiring and you get onto the Facebook site, and a person’s talking about all their drunken binges, you might not want to hire that person.
Certainly, there are some situations where it would be much more serious. Let’s assume that you’re an elementary school and you want to hire a teacher. And you get some credible information that this applicant may be a pedophile. And you ask the applicant, and you get access and go on, and you find this child pornography all over this social media site. That would obviously be something an employer would want to know.
What we really have here is, on the one hand, there are some legitimate reasons why employers would want this access. On the other hand, there are legitimate interests in protecting privacy.
NLJ: What legal risks do employers face by doing this?
DP: We have to distinguish between governmental employers and private employers. That’s because governmental employers are subject to the Fourth Amendment, which restricts their right even as employers to perform unreasonable searches of their employees and possibly of job applicants.
Private-sector employers are not subject to constitutional restrictions on what they do with respect to job applicants. However, there may be other federal laws, state laws or common law principles that apply.
One danger is that although a job applicant gives consent, a court may, or a jury may, ultimately conclude that that consent is coerced and that the access is therefore unauthorized. Most states have some common-law torts or invasion of privacy. To what extent those torts apply here, there’s no clear guidance on that.
NLJ: What other types of legal risks do employers face?
DP: One is that if you do get access to a social media Web site and you find that the candidate is a racial minority or disabled or elderly or whatever, and you reject that applicant; you may later find that there’s a claim of discrimination. A lot of people are talking about that threat. I don’t think that is a real make-or-break reason for an employer not to engage in the practice. After all, employers interview people in person all the time, and there’s nothing illegal in knowing what a candidate’s personal characteristics are.
But there are some other concerns. For example, if you do obtain private or sensitive information about candidates, you need to be very careful that that is not disclosed to third parties. If you don’t, you could be sued under state law for publication of private information, which is a tort in many places. And the employer may also risk liability under the FTC’s data privacy rules.
Another kind of situation comes up if you’re an employer and you get information off of someone’s social media site and you provide that information to a consumer reporting agency, which then actually uses it while conducting a background check.
NLJ: Facebook condemned the practice. What role does Facebook have, if any?
DP: It certainly helps raise the public profile of this issue. Facebook said it is going to engage with policymakers, and there has been a real rush of activity among legislators to get some legislation going in this area. I don’t think that Facebook is facing any liability on its own. It doesn’t want employers invading the privacy of people’s social media sites because that would discourage people from using social media sites.
NLJ: So far, two states have proposed legislation to deal with this issue. Tell me about those proposed laws.
DP: In Maryland, the bill has been pressed by the state Senate and is now in the state House of Delegates. In Illinois, it’s going through three readings in the state Senate. And both of them have fairly sweeping prohibitions on this practice. What’s interesting is that neither provides any exception for law enforcement or other sensitive information. Both of them relate to both job applicants and current employees, and at least the Maryland one doesn’t have any exception for investigations that an employer may want to do as to current employees.
For example, let’s say you’re an employer and you get wind that there’s some reasonable basis for suspicion that a childcare worker is a pedophile, and you want to investigate it, and you ask the employee, “Show me your Web site.” Maryland law wouldn’t have any exception. The only thing it would allow would be a prosecutor to convene a grand jury or get a warrant or something like that.
In Maryland, they also have a companion bill that applies to colleges — or, actually, postsecondary institutions — which would outlaw a college from asking a high school student who’s applying, or a current student, for access to their social media Web sites. In addition to job applicants and employees, this would extend to students and applicants for admission to colleges and universities.
NLJ: What chance does this legislation have of passing?
DP: I think there will be legislation at the state level. And I can’t say whether these laws as drafted will be amended or refined as they go through the second house of their respective state legislatures. But I think there will be legislation, and possibly at the federal level. Sens. Blumenthal and Schumer have announced that they will be developing legislation in this area, and they’ve also requested that the Department of Justice and the Equal Employment Opportunity Commission investigate whether these practices violate any existing law. Significantly, Sen. Blumenthal’s statement indicates that he contemplates some exceptions for law enforcement, national security personnel and maybe some forms of government contractors.
NLJ: Do you anticipate that other states will pass similar legislation?
DP: Yes, I think there will be legislation introduced and in a reasonable number of states, but Maryland and Illinois are ahead of the pack and may be the trend setters.
This article originally appeared in The National Law Journal.
