Legality of Employers Asking Job Applicants For Facebook Passwords Questioned

By Manuel Valdes and Shannon Mcfarland | March 22, 2012

In their efforts to vet job applicants, some companies and government agencies are going beyond merely glancing at a person’s social networking profiles and instead are asking to log in as the user to have a look around.

“It’s akin to requiring someone’s house keys,” said Orin Kerr, a George Washington University law professor and former federal prosecutor who calls it “an egregious privacy violation.”

Questions have been raised about the legality of the practice, which is the focus of proposed legislation in Illinois and Maryland that would forbid public agencies from asking for access to social networks.

Since the rise of social networking, it has become common for managers to review publicly available Facebook profiles, Twitter accounts and other sites to learn more about job candidates. But many users, especially on Facebook, have their profiles set to private, making them available only to selected people or certain networks.

Companies that don’t ask for passwords have taken other steps – such as asking applicants to friend human resource managers or to log in to a company computer during an interview. Once employed, some workers have been required to sign non-disparagement agreements that ban them from talking negatively about an employer on social media.

When Justin Bassett interviewed for a new job, he was astonished when the interviewer asked for his Facebook username and password.

Bassett, a New York City statistician, refused and withdrew his application, saying he didn’t want to work for a company that would seek such personal information.

But as the job market steadily improves, other job candidates cannot afford to say no.
Asking for a candidate’s password is more prevalent among public agencies, especially those seeking to fill law enforcement positions such as police officers.

Back in 2010, Robert Collins was returning to his job as a security guard at the Maryland Department of Public Safety and Correctional Services after taking a leave following his mother’s death. During a reinstatement interview, he was asked for his login and password, purportedly so the agency could check for any gang affiliations. He was stunned by the request but complied.

“I needed my job to feed my family. I had to,” he recalled.

After the American Civil Liberties Union complained about the practice, the agency amended its policy, asking instead for job applicants to log in during interviews.

“To me, that’s still invasive. I can appreciate the desire to learn more about the applicant, but it’s still a violation of people’s personal privacy,” said Collins, whose case inspired Maryland’s legislation.

Since 2006, the McLean County sheriff’s office has been one of several Illinois sheriff’s departments that ask applicants to sign into social media sites to be screened.

Chief Deputy Rusty Thomas defended the practice, saying applicants have a right to refuse. But no one has ever done so. Thomas said that “speaks well of the people we have apply.”

When asked what sort of material would jeopardize job prospects, Thomas said “it depends on the situation” but could include “inappropriate pictures or relationships with people who are underage, illegal behavior.”

E. Chandlee Bryan, a career coach and co-author of the book “The Twitter Job Search Guide,” said job seekers should always be aware of what’s on their social media sites and assume someone is going to look at it.

More companies are also using third-party applications to scour Facebook profiles, Bryan said. One app called BeKnown can sometimes access personal profiles if a job seeker allows it.

Sears is one of the companies using apps. An applicant has the option of logging into the Sears job site through Facebook by allowing a third-party application to draw information from the profile, such as friend lists.

Sears Holdings Inc. spokeswoman Kim Freely said using a Facebook profile to apply allows Sears to be updated on the applicant’s work history.

Giving out Facebook login information violates the social network’s terms of service. But those terms have no real legal weight, and experts say the legality of asking for such information remains murky.

The Department of Justice regards it as a federal crime to enter a social networking site in violation of the terms of service, but during recent congressional testimony, the agency said such violations would not be prosecuted.

But Lori Andrews, law professor at IIT Chicago-Kent College of Law specializing in Internet privacy, is concerned about the pressure placed on applicants, even if they voluntarily provide access to social sites.

“Volunteering is coercion if you need a job,” Andrews said.

Neither Facebook nor Twitter responded to repeated requests for comment.

About Manuel Valdes and Shannon Mcfarland

Associated Press
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Latest Comments

  • March 26, 2012 at 4:42 pm
    Networker says:
    I'd turn down the request and say "I'm sorry, I don't share that information because it would give you access to the private information of my friends and family. I'm not shy ... read more
  • March 26, 2012 at 2:44 pm
    Kimberly Jorden says:
    Personally, I feel employers asking for login and passwords on social networking sites, is akin to them asking to paw through my underwear drawer.
  • March 26, 2012 at 2:14 pm
    joesure says:
    Ages ago...I did something similar. I was interviewing at a place that I really had reservations about. A recruiter had sent me there...and pretty much twisted my arm to even ... read more
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