Social Media Information as Part of the Employment Process

Aunt Marge just posted pictures of her vacation to Las Vegas, my brother just checked in that he was at a concert in San Francisco, and my status today is reminiscent of the serenity prayer. So what does this have to do with my job? For a growing number of employers, it could make the difference between hiring me and sending me the “Thanks, we’ll call you” letter.

When deciding if an applicant is a good fit for their organization, employers increasingly use a prospective employee’s social media information as an effective source. It raises serious issues, however, to demand that a prospective employee provide a password, or to “shoulder surf” an applicant’s social media website during the interview process. To begin with, such information is arguably private — and it could be an invasion of that privacy to require access. Second, social media sites could provide a prospective employer with information (race, marital status, sexual orientation, etc.) that would violate employment law if it were demanded during the interview process. Third, the prospective employee’s consent is insufficient to protect the employer, because in the context of an employment situation the consent may result from coercion or duress (for those interested in a relevant court case, see Pietrylo v. Hillstone Restaurant Group 2009 WL 3128420 (D.N.J. 2009)).

While no current case law in California exists banning the practice of requiring prospective employees to provide their social media information, both the state and the federal government have proposed legislation to address this issue. The Federal Password Protection Act of 2012 (S. 3074, 112th Cong., 2d Sess. (May 9, 2012)), would prohibit employers from requiring or requesting job applicants to provide their social media accounts as a condition of employment; similarly, the Social Networking Online Protection Act (H.R. 5050, 112th Cong., 2d Sess. (Apr. 27, 2012)), introduced in the House of Representatives, would prohibit employers from requesting user names, passwords, or other access to online content, and would prohibit employers from using information obtained through social media sites to discipline, discriminate against, or deny employment to current or potential employees. In California, AB 1844, amended July 2, 2012, would enact similar protections for employees and prohibit employers from accessing employees’ social media information in making employment decisions.

Social media sites that are specifically related to an individual’s professional career (LinkedIn for example) can arguably be fair game for employers; but it’s a stretch to argue the same for, say, using Facebook to assist in evaluating prospective or current employees’ suitability for employment. And even from an employer’s perspective: why provide fodder for discrimination complaints by individuals who for legitimate reasons were terminated or never hired? Moreover, employers should respect the privacy of their employees. Employers have a number of tools at their disposal to make informed decisions about their employees without resorting to “Facebook Stalking.” Individuals have the right to privacy in their personal lives. Demanding they provide information that is unrelated to their professional careers digs too deep to be anything but an invasion of that privacy. The California constitution codifies that individuals have a right to privacy. If an employer violates your privacy to either deny you employment, or as the basis for some form of adverse employment action then you may have a right to sue your employer for damages.

- Aro Ebenhahn, Employment Law Intern