Employers are Asking for Your Facebook Password

There has been a lot of buzz over employers requiring that their employees allow the company access to their Facebook page as part of the hiring process. Facebook has recently issued a statement on this practice.

Erin Egan, Facebook’s chief privacy officer and former Covington and Burling attorney, issued a statement urging both public and private employers not to participate in these practices. She offers her legal reasoning as follows:

“We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do. But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person.” “It also potentially exposes the employer who seeks this access to unanticipated legal liability.”
“Employers also may not have the proper policies and training for reviewers to handle private information. If they don’t—and actually, even if they do–the employer may assume liability for the protection of the information they have seen or for knowing what responsibilities may arise based on different types of information (e.g. if the information suggests the commission of a crime).”

Granted, Egan might not be a California employment attorney and therefore not the most qualified to give advice to employers on what they should and shouldn’t do. She is correct to state that participating in this practice is definitely subject to be challenged. Egan’s statement was directed nationally so she did not address California’s Constitution’s Privacy Protections.

California’s Constitution’s Privacy Protections, Article I, Section I of the California Constitution provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

The California Supreme Court has held that to determine whether an individual’s constitutional right of privacy has been violated, the court must balance the compelling need for the information against the reasonable expectation of privacy the person has in the information. It will be difficult for most employers (other than perhaps those hiring for national security or other related positions where they are exposed to extremely sensitive information), or any college, to demonstrate a compelling or strong need for this information. Employers have been hiring employees without detailed personal information for hundreds of years. In most cases, it will be extremely difficult for an employer to demonstrate a new and sudden compelling need to get behind an applicant’s Facebook password to be able to evaluate that individual.

Basically, Egan’s statement that requiring this information may leave the employer vulnerable to a lawsuit is quite accurate and increasingly risky if you are a California employee.

Labor law is complex; if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights, and in many cases will review your situation without charge