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Friday, April 13, 2012

Can an Employer Ask for Facebook Passwords?

In an article published in the Washington Post on April 9, 2012, Ancel Glink attorneys Margaret Kostopulos and David Lefkow discuss the legal implications of asking employees and candidates for social media login information.  With respect to job candidates, the practice is probably legal. Because an applicant can decide not to apply for a particular job, it is neither an invasion of privacy nor a violation of constitutional rights to ask for this information during the hiring process. And if applicants refuse to provide the requested information, employers are free to drop their consideration for hire.  As discussed in this blog previously, this may change as some state legislatures (including Illinois) consider legislation to ban this practice.

This legal analysis may not extend to current employees because their rights are generally greater than those of candidates for employment.  Unless there is an actual need to review an existing employee’s social media profile, it may be difficult to find a connection between social media usage and the employee’s right to hold their job. 

The article also contains a few tips to help employers implement controls in the social media review process:

·    The request for login information should be stated on the application and/or explained at the outset.
·    Employers should closely consider the purpose in reviewing social media information of applicants.
·    The rule should be uniform and fair. To prevent the appearance of bias, employers who elect to monitor social media profiles should uniformly check everyone’s profiles. They should also create a checklist to help streamline the review protocol.


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