The hot legal question of the day is this: Can employers ask applicants for their Facebook password as part of the hiring process?
Not according to Senators Charles Schumer (D-NY) and Richard Blumenthal (D-Conn.). In late March, they asked the Department of Justice and the Equal Employment Opportunity Commission to look into whether such a request violates federal law, according to a March 26 article in The Hill , “Senators Urge Feds to Probe Employers Requesting Facebook Passwords.” Their reasoning, from a joint statement: “Employers have no right to ask job applicants for their house keys or to read their diaries,” so why should they be able to ask for their Facebook passwords? And, Facebook agrees, according to a March 23 piece in The Hill , “Facebook to Lobby Against Employers Requiring Passwords.” But on March 28, the House of Representatives voted down an amendment that would have banned employers from demanding access to Facebook accounts, according to an article that same day on ZDNet.com.
In the other corner are the nation’s employers, concerned that failing to fully investigate an applicant’s background may result in, at best, a poor hiring decision and, at worst, a suit for negligent hiring. A fight is brewing, but some time-tested experience can help lawyers guide their clients. While Facebook is new, the employment law issues that swirl around it are the same issues employment attorneys on both sides of the docket have faced for years.
First, for those attorneys who aren’t yet on Facebook, it helps to understand some basics. Some Facebook accounts are public (like mine), while others restrict access. People can post photos on Facebook. The Facebook functionality also includes a place to indicate whether the user is in a relationship and with whom, educational background, political leanings, and a status-update section where the user posts whatever is on his or her mind.
Here is one piece of advice employers’ lawyers need to share with their clients: Do not ask a job applicant about or investigate matters that are irrelevant to the hiring decision. Why? Focusing on what is pertinent and eschewing what is not makes for a simpler hiring process.
More importantly, courts won’t hold an employer liable for making a decision based on a protected classification if the employer does not know about the classification. Here is a sampling of the kinds of information an employer can learn on Facebook — and thus be accused of using it to make a discriminatory hiring decision:
• race (“My husband and I plan to teach our twins about their European and African heritage.”);
• religion (“I’m looking forward to my trip to the Holy Land for Easter”);
• disability (“I can’t wait to compete in the next Paralympic Games”)
• sexual orientation where addressed by applicable law (“I met a great guy last night who is out and proud”).
All of these classifications should be irrelevant to any hiring decision, and the law deems inquiries into them off limits.
Some lawyers may think these examples are far-fetched. So, let’s look at the U.S. District Court for the Eastern District of Kentucky’s summary judgment decision in Gaskell v. University of Kentucky (2010). The university was building an observatory and was in the market for a director. A member of the search committee decided to do an Internet search on C. Martin Gaskell and came across an article he had written on astronomy and the Bible. In a damning email titled “The Gaskell Affair,” the head of the search committee wrote, “[T]he real reason we will not offer him [Gaskell] the job is because of his religious beliefs. . . . ” Summary judgment denied. The case settled for $125,000, according to the Jan. 14, 2011, settlement agreement, which was followed by a joint motion to dismiss on Jan. 18, 2011.
In the university’s case, ignorance would have been bliss. As the great English poet Thomas Gray put it in “Ode to a Distant Prospect of Eton College,” “[W]here ignorance is bliss/’tis folly to be wise.”
Discrimination claims are not an employer’s only worry. Asking for and receiving a Facebook password exposes an employer to possible liability under the Stored Communications Act or the Computer Fraud and Abuse Act . The first prohibits intentional access to electronic information without authorization, while the second prohibits intentional access to a computer without authorization to obtain information.
Look at Pietrylo, et al. v. Hillstone Restaurant Group , a 2008 case from the U.S. District Court for the District of New Jersey. The court’s summary judgment opinion sketched it out. Brian Pietrylo worked at a restaurant. He was not a happy camper at work and created a private, members-only group on MySpace (geez, remember that site?) for his fellow employees to discuss complaints on their mutual employer. As Brian noted in the initial post, “Let the s–t talking begin.”
Nothing remains a secret for long; management got wind of it and asked an employee to provide access to the site. She agreed but testified she felt coerced into doing so. The managers looked at the information on the site, a once-brave Brian told them he was “just joking,” and he was fired along with other employee participants. He and the others sued, claiming a violation of the Stored Communication Act. The company asserted that the employee voluntarily gave up the access information and asked for summary judgment. Denied, because the court found a fact issue on whether the employee’s providing of the password information was “voluntary” and thus access was with authorization.
Does this sound familiar: “If you want this job, you can have it, but you must first give us the password to your Facebook account”?
Legal issues do not end there or with Facebook. Lawyers should check out Google +, the most serious challenger to Facebook. Google + allows users to create circles, which includes invitation-only members. I have a circle called Texas Employment Law.
Why stop at Facebook passwords? Perhaps an employer thinks it needs to know what circles to which an applicant belongs? Hello, Americans With Disabilities Act association-discrimination claim. You get the idea.
I love “Casablanca.” Recall the scene where Sam sings “As Time Goes By”: “the fundamental things apply/as time goes by/ . . . on that you can rely/no matter what the future brings. . . .” The same is true here. Employers only need to know what they need to know. Facebook information is generally worthless in the hiring process. Employers’ lawyers should advise their clients to ask only for information congruent with the position’s essential functions.
Does the employer really need to know more? It can do a background check consistent with the requirements of the Fair Credit Reporting Act, or it can require the applicant to take a personality test to determine whether the applicant will work well with co-workers. The fundamentals of good hiring and good legal counseling apply. They always have and always will.
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