Can Your Facebook Account Cost You Your Job?

Interview with Ted Gentry
As heard on “The South Carolina Business Review” with Mike Switzer
Broadcast Friday, July 13, 2012

Read the transcript below:

Those of us with social media accounts are constantly warned not to post embarrassing items. It’s now part of conventional wisdom that indiscreet posts could keep you from getting – or keeping – a job. But are there reasons an employer might not want to look too deeply into such intimate details of an employee’s or applicant’s life?

Here to help you think about whether to avert your eyes is Ted Gentry. Ted is a litigator and employment lawyer with Wyche, P.A. in Greenville. Ted has been at Wyche over 20 years, handling litigation in federal and state courts, and advising a variety of employers and individuals on employment law issues.

Ted, I gather the question of whether an employer should ask for a job applicant’s Facebook or other social media passwords has become a hot topic.

That’s right Mike. And it’s really not surprising. As you observed, those of us with teenagers have been bombarding them with warnings about the permanency of the internet, and the potential consequences of posting embarrassing material. It was only a matter of time until some businesses looked at the flip side of that advice, and decided it would be a good idea to see what kinds of things an applicant – or employee for that matter – might have been eager to share. So a number of employers began requiring social media passwords of applicants and employees.

You can certainly see the logic.  Is there a problem with asking for that kind of access?

That’s a question that the law is still answering. It’s undeniable that you might learn something pertinent through unfettered access to a Facebook account. At a minimum, you might gain considerable insight into the person’s judgment and maturity.

But as you probably know, there are certain questions that are off-limits in the hiring context – questions about things like religious affiliation, disabilities, or national origin. And there’s a very good chance that if you go through an individual’s social media accounts, you’ll glean information on one of those sensitive topics.

Now that you’ve looked at the account and determined that the applicant is a Druid, you could face complications if you don’t hire her. She could say you took the action because of your bias against Druids, and sue you for religious discrimination.

Ted, you mentioned teenagers, and it sounds as if the risk may be TMI – too much information.

That’s a good way to think about it, Mike. When the law is confronted with a new situation, lawyers like to proceed by analogy. And asking for a Facebook password feels less like seeking references, and more like asking an applicant or employee for his diary. Your instinct tells you there’s something wrong and intrusive about that. And it’s because you’re likely to get a large collection of information that’s unrelated to job performance. And employers are simply better off not gathering that sort of information in the first place.

Aside from that, I think there are likely to be other costs. A lot of really good potential employees are going to be turned off by the request, and they might look elsewhere rather than complying. And in the long run, I think asking for this kind of information is going to be bad for morale and for relations between the company and its workforce.

So asking for social media passwords may not be a great idea. But is it illegal?

It looks as though we’re headed that way. There is federal legislation pending that would make the practice illegal.

Maryland recently became the first state to enact a similar law, prohibiting requiring an employee or applicant to turn over a social media password. Similar bills are pending in Minnesota, Illinois, Michigan, California. And, most pertinent to your listeners, there’s a pending bill in SC.

I should also mention that there are two reported court cases out there, which use a different federal law – one that prohibits “unauthorized access” to stored data – to declare the practice illegal. The decisions may be a little bit of a stretch – the courts reasoned that an employee didn’t really have free choice when asked by an employer to turn over a password, so the employer’s use of the password was not truly “authorized.” But the decisions do show that judges tend to agree with the gut-level assessment that there’s something wrong with demanding social media passwords.

So if those bills pass, we’ll have a clear answer on whether asking for passwords is legal?

Probably, Mike, although as always, you can think of reasons we might want exceptions. For instance, there might be a legitimate need to see social media postings in connection with an internal investigation. And for extremely sensitive security positions, we might want to strike the balance a little differently.

So if the laws don’t carve out those kinds of exceptions, we might still need to tinker around the edges a little.

This information is provided by Wyche,P.A. for educational and informational purposes only and is not intended and should not be construed as legal advice. We will be pleased to discuss with you in more detail the application of any of the topics covered above to your circumstances. Please contact our firm for more information.

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.

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