Can an Employer Ask for Your Facebook Profile?

We have all seen stories about how social media accounts are treasure troves of information.  In past years, legal experts have discussed the issue of whether employers should view social media information of prospective employees. Some employers are tempted by the amount of information available on these services to vet employees and obtain a much more candid view of what makes job applicants tick.

Some employers are taking the next step and asking job applicants to provide user name and password login information to see the most private information on applicants’ social media accounts.  Others want the applicant to log in at an interview so that they can “shoulder surf” and review what the information looks like.

I recently heard a story on National Public Radio about Robert Collins, who was reapplying for his old job as a corrections officer with the Maryland Department of Public Safety and Correctional Services.  The Department wanted his password to see his Facebook information, and he felt uncomfortable by the request.  This story and others like it are generating a significant amount of outrage in the media.  Even Facebook disapproves of the practice and is threatening to sue employers who demand Facebook passwords.

Recently, California Senator Leland Yee introduced legislation (SB 1349) that would prohibit employers from asking for social media user names or account information, or any content from social media accounts.  The bill also covers postsecondary educational institutions.

Setting aside the California legislation and bills in other states, here is the message for employers:  asking job applicants for social media login information is risky.  Doing so threatens to cause the user to violate social media services’ terms of service and may trigger a suit from the social network, at least in the case of Facebook.  Job applicants or employees may use such practices as the basis for a breach of privacy suit.  Moreover, if an employer reviews social media information in an inconsistent way, the employer may be opening itself up to claims of discrimination.  Asking for login information just doesn’t seem worth it.

StevenSWu3 Attorney Stephen Wu is a partner in the law firm of Cooke Kobrick & Wu LLP in downtown Los Altos.  He can be reached at (650) 917-8045 or via email at swu@ckwlaw.com.

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