HR News & Trends, Legal Issues

Take a Deep Breath: It’s Not Ridiculous to Ask For Social Media Passwords

123RF Stock Photo

By William A. Nolan

Let’s get two easy points out of the way.

First of all, we all agree – few employers are asking applicants for their Facebook or other social media passwords. The issue has been hugely overblown in recent weeks. Slow news cycle.

Second, if you think you might like to ask applicants for their passwords, do not start now. If you are already doing it, stop. Immediately. After the last few weeks, demanding passwords of applicants is akin to stealing a puppy from Santa Claus.

This point you might not find so easy: The idea of asking applicants for their social media passwords is not ridiculous. Collectively, we just have not figured out yet how to do it right yet.

3 statements to consider

Work with me here. First, do you disagree with any of the following three statements?

  1. The more job-related information the employer has about the employee prior to making a hiring decision, the more successful the employment relationship is likely to be.
  2. How a worker puts widgets together is only part of the hiring equation. Equally important is the worker’s ability to function as a successful part of a team. It matters what kind of person you are. That is often trickier to measure than hands-on job skills but it is possible, for example, to administer properly validated personality tests in the hiring process.
  3. What you do on social media says something about what kind of person you are. It may say lots of other things that we all agree have nothing to do with your ability to do your job, but can we really dispute that information on social media will say something about what kind of employee you will be?

Some risks that deserve a careful look

One response to statement No. 3 above might be to agree but to say, “the benefits are outweighed by the risks.” But let’s look carefully at some of the risks that have been identified.

  • Accessing social media may cause an employer to violate discrimination laws. If you access somebody’s social media accounts, you may obtain information that is not properly considered as part of the hiring process, such as the applicant’s religion, their age, or their family status. Of course, this has always been true with any kind of hiring-related information gathering. Accordingly, most employers have modified their employment applications to avoid questions that may elicit such information.

We just need to figure out the social media version of weeding non-job-related questions out of the employment application. What if the employer creates job-related questions and has an employee assigned to answer those questions based on a review of applicants’ social media accounts? The employee is specifically instructed not to provide certain kinds of information – the information any employment lawyer would immediately tell you should not be in your employment applications. Some employers are doing some like this already with the review of publicly available social media information.

  • It may violate the federal Stored Communications Act. The SCA prohibits unauthorized access of an electronic facility so as to obtain access to an electronic communication that while it is in electronic storage. But the SCA expressly excepts conduct that is authorized by the person who makes or is the intended recipient of the communications. Employers have been using this “consent exception” for almost two decades in their technology use policies – if you want to work here, sign this policy that gives me the right to monitor your technology use.
Attorney William A. Nolan

Attorney William A. Nolan

Think it’s not consent if the employer requires access? If employers cannot compel applicants and employees to consent to things they do not like as a condition of employment, then we will need to rethink noncompete agreements, drug testing, and really any kind of background checking whatsoever. Certainly applicants cannot be forced to consent to things that are otherwise illegal, so for example you would not demand consent to information beyond what you have determined you can properly review. But the SCA standing alone should not render illegal the review of applicants’ social media information.

  • It violates terms of service. Facebook has taken a strong stand – it will protect its users’ privacy and any attempt to force users to disclose passwords will be considered a violation of Facebook’s terms of service and will be dealt with accordingly. Of course, Facebook has the right to set whatever terms of service it likes, and the stand it has taken is the right one for it to take from a business standpoint.

But it is one thing to say I cannot get on a social media site unless I consent to its terms of service. What if I, as an employer, say that I will hire only those applicants who will sit down at my desk and log into their Facebook account and look over their shoulder? Or that I just will not hire people whose privacy settings block my access to their social media information, or who will not “friend” or link to me? (I don’t need passwords under either of those scenarios.)

What is a social media provider going to do about that? Somewhere there is a limit on providers’ ability to selectively manage this vast universe of often widely shared information.

Employers CAN ask for job-related information

Here is why some form of compelled social media access can work: We have a well developed consensus in this country about what employers can and cannot ask in the hiring process. That consensus is built around job-relatedness.

Employers are entitled to job-related information about applicants and employees, and not entitled to non-job-related information. While there are few laws that expressly say an employer cannot access non-job-related information (the Americans with Disabilities Act is a notable exception), to do so puts the employer at risk of discrimination liability when it relies on information that is not job-related and might be seen as having a disparate impact on protected classes.

For example, discrimination enforcement agencies take the position that employers cannot ask about arrests because that information may have a disparate impact on groups protected by Title VII. And employers generally do not have a problem with that rule. Likewise, employers understand reasonably well where the lines are drawn with respect to job-related information in the ADA context. Employment lawyers counsel employers on these kinds of questions, but rarely do we find ourselves litigating these issues.

I submit that, if everybody calms down, the job-relatedness consensus can be applied to applicant information on social media. Legislators who are rushing to ban the consideration of social media are doing a disservice to employers, to good employees who are entitled to work with colleagues of a certain quality and, in extreme situations, to the public by depriving employers of job-related information about applicants.

What all stakeholders should be doing is sitting down to a reasoned dialogue about how we apply the stable consensus about what employers can ask in the hiring process to a high tech, social media world. Employers, you know there is job-related information out there on the internet. Don’t be afraid to ride out the current storm, then set about figuring out how to go get it.

This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

William A. Nolan serves as the Managing Partner in the Columbus, Ohio office of the law firm Barnes & Thornburg LLP. Bill is a member of the firm’s Labor and Employment Law Department, and has extensive experience as a litigator, trial lawyer and counselor. Contact him at bill.nolan@btlaw.com.
  • Kreativniche

    Nope. Still not buying it. My Thoughts about the craziness that goes on in the world, my sorority life, school, family, and vacations will not show an employer what type of employee I will be. Does it give further insight into my life? Sure, but my opinions about my family and friends, what I eat and who I eat it with, have nothing to do with my work capability. And likewise, should we make the exposing of SoMe sites reciprocal? A job interview works both ways. Is the hiring manager someone I want to work for? He wants to see mine, then he needs to show me his.

    • http://twitter.com/MarketingMeggie Meggie Miller

      Ha! Good point. I’ll show you mine if you show me yours, Potential Boss! :)

  • http://twitter.com/MarketingMeggie Meggie Miller

    It’s one thing if an employer accesses my public social media work and casts judgment on my ability to do a job or fit in with a company culture. But any employer who wants me to log in to my personal Facebook account and allow him/her to “look over my shoulder” has a serious trust issue and can expect to see me respectfully decline and take my experience, work ethic, and creativity elsewhere.

  • Bwalaspa

    I still don’t buy it, either.  If I want to rant and rave to my friends about any frustrations I might have with my employer, what’s the difference if I do it to those friends at a barbecue or on Facebook?  If I have my privacy settings set right so that only friends see it, who cares?  I have a public Facebook page for my writing and a private one that is, well, private.  And no one but the people I choose to let see it, need to see it.  Now, if the CEO will let me review HIS Facebook pages, maybe we can work out a deal.

  • Kelly

    The flawed premise of this article assumes that people use their Facebook accounts for professional reasons, when in fact the majority of Facebook users don’t – they use their Facebook accounts for personal reasons. It’s called a Friend Request, not a Colleague Request. I don’t “friend” my employer or my co-workers. I connect to them on LinkedIn. So no, employers do not have the “right” to ask for my Facebook password or my email password, and they can’t sleep with me and husband at night to see what we do when the lights go out.We’ve got to draw the line somewhere!

  • Mkleiman

    Great title and got lots of people to read the article but no substance. 

    • John Hollon

      I’m surprised this is how you saw it, Mel. I thought it was an interesting look into the legal issues surrounding the topic, and I came away with a lot more understanding of the thinking behind “why” many employers might want to do this … doesn’t mean it is a good idea, but I get a better sense of it now …

  • TNoebel

    I didn’t (and don’t) see the job relatedness connection actually get made in the article.  So no, I do not support companies requesting social media access.

  • http://twitter.com/ExaByzness ExaByzness

    Great Article! We  shared
    it with small business owners today on Exabyzness.

  • http://billock.net BrentBillock

    All three of your enumerated “statements” above are valid questions that may be answered in part by a candidate’s social media presence. 

    But the only relevant information to be considered is that which is available to the general public. If an employee is competent at managing his privacy settings, the “Public” or “Friends of Friends” will not see items which may be unsavory to a potential employer’s clients and prospects.

    Potential employers don’t need candidates’ passwords to determine whether they project a professional image to the general public. Asking for the public URLs of their social media profiles should be the limit to the investigation.

  • Lewis Tully

    This is why I decided not to be a lawyer. I can’t believe you can’t see higher order values in this discussion. I won’t post it to my FB page, but you scare me with your clinical approach to this…why not move next to overpopulation and argue why eliminating some older people might be better for the workforce, too….

  • GetReal!

    This is a Big Brother knows best argument that doesn’t hold water.  It is a violation of privacy, not only of the candidate, but also anyone with whom he/she is linked to on the social media site.  Yes, a certain amount of privacy is forfeited by participation in social media, but those individuals still maintain the right to control to whom they give access to that private information.

  • Private means private

    Nope. Can’t have it don’t ask. What I do at home is my business. I don’t check it at work and therefore you can’t ask. Don’t want me to check it at work? Limit my access that is a right an employer has. Want my ATM pin while you’re at it?

    I do find it clever that the author is riding the controversy and getting some more eyeballs.

  • OscarMarroquin

    We all agree that there are questions that employers are not allowed to ask during a job interview (religion, marital status, etc).  It seems to me that answers to these questions can be answered very easily on a person’s facebook page.  Also, the employer may read or see photos that may be protected personal information.. now what.. it’s next to impossible to put the tooth paste back into the tube.    George Zimmer of the Men’s Warehouse doesn’t do background checks on his new hires… he believes in giving people a second chance, so I’m pretty sure he wouldn’t be asking for facebook passwords.

    From an employer stand point, its great to have all the information, from the employee stand point, there are privacy issues and from the employer (again) potential misuse of the information and potential discrimination.  Also, it seems to be a lazy way for employers to get the information.  If its important, why not contact neighbors and friends of the applicant and survey them about the applicant?

    Finally, as someone commented earlier, if the employer absolutely needs the password, perhaps an exchange of passwords is the fair thing to do? 

    • BIN

      Contact neighbors?  Please, stop it.

      • OscarMarroquin

        I hear you.. this was the system some companies used when conducting employment background checks (don’t know if this is still done).  At least when they did this, they explained why they were asking…  And.. I think its better than going through the applicant’s social media sites.

  • Just Thinking

    Seriously, if an employer is incapable of using the application, resume, and interview to assess the candidate’s job related information (knowledge, skills, and abilties) — what additional job related information are they likely to be able to ascertain from lookiong at the applicant’s private FaceBook post?   Answer — nothing.   These types of employer tactics are what cause us to be so hamstrung by all the various employment discrimination laws.   Sadly, when left to their own devices — there are some employers who simply cannot simply judge a candidate on job related criteria.

    • http://www.facebook.com/profile.php?id=504425493 Robert J Shoaf

      Knowledge, skills, and abilities don’t tell employers who you are. They just say what you are able to do. There is a reason why people don’t just buy any ol’ car. They shop around until they find the one that is the right fit. If there is more than one that can do the job and is the right fit, then there are other potentially value added qualities that are discussed. One might ask for the manufacturers warranty or look into the auto maker’s or dealer’s reputation of service beyond the sale, charitable givings, or even social responsibility report (how do these tell me more about the ability of the vehicle). We want our long term assets to be just that, long term. Employees are people and should be treated with dignity and respect, but they are also meant to be around for the long term. So, in order to determine fit for the company culture within the constraints of the law, some innovative techniques to uncover the person behind the abilities must be developed. These are the bits of additional job related information that are being sought from FB and others. Not saying it is the best method, but it is a method nonetheless. 

  • BIN

    The company I used to work for had high executives searching the internet for porn.  And they still kept their jobs while vilating our security procedures and polices.  For potential employers to ask for passwords to social media is pathetic.

  • ELMo

    This is among the reasons why I closed my Facebook account and backed away from the social media.

  • http://twitter.com/ipttoolkit Eboni DuBose

    I was just listening about an aspect of this on NPR yesterday concerncing social media and teachers.  A teacher was reprimanded because she was at a bachelorette party (at a strip club) and she was seen in a photo drinking, or another teacher was reprimanded because she drinking  a beer on a vacation with her family.  As a past teacher I think it is ridiculous to hold teachers or any other employee to being “perfect”.  Teachers and other employees have private lives (some people drink some people might get invited to a strip club to celebrate a friend’s upcoming marriage, etc).  The point is this focus on using social media to screen and dictate how people should run their lives crosses the line. The most troubling aspect is that there were teachers who were afraid to even get their pictures taken at an event because they were afraid they would get tagged!  So no BOSS, don’t ask me for my password to Facebook, we can connect on LinkedIn!  If a job even asked me for my information like that, I would not apply because it is not a company I would want to work for. 

  • BIN

    William Nolan – enough!

  • Adelle Popolo

    Do want to look at my personal photo sites? How about read my chats? This is a violation of privacy! You can search LinkedIn all you want; that’s obviously a job related network. But outside of that – NO WAY!

  • NJ Jazz Lady

    If you want to publicly look at any social media that I belong to; fine.  But my password is just that – MY password.  If you can’t figure out who and what I am from my resume, interview, and background investigation, then maybe you’re not the right employer for me.
    Besides that, if my password were to somehow be released to someone else and someone not authorized posted to my page, how am I protected?
    This is a lose-lose proposition.

  • Beth Terry, CSP

    This is quite a stretch to justify asking for ANY of an
    employee’s passwords that are outside the purview of the job
    description. It’s typical lawyer-think but not a sound policy in the
    real world. As everyone else has pointed out, there are specific questions an employer cannot ask in the interview. By accessing private files on a private FB page, the Company WILL see that information and thus is now open to wrongful discrimination suits if someone is not hired. ergo – “You didn’t hire me because I am [fill in the blank] which you found out on my FB page and you can’t ask that question or have that knowledge!”

    In the thirty years I’ve worked with HR and Interviewing, we have been told we can’t have resumes or applications with a photograph on them lest it identify their gender, race, or other characteristics that might lead to discrimination. Your premise flies in the face of those rules. And your paragraph on non-job related information refutes your entire article. You CANNOT HAVE non-job related info in the files. Most social media is just that. How will an employer skate through that minefield?

    And there are logistical problems: What will the employer DO with the FB passwords if they don’t hire the person, or even if they do? How will the employer guarantee that the passwords won’t be misused? Who is cleared to use those passwords? How will you do a background check on the employee with clearance to use the passwords? You’ve added a whole ‘nother layer of bureaucracy when you could just be doing the legwork it takes to do a real interview!

    Add to that an unintended consequence and burden on the company: Too
    many people use the same password for all their online accounts, so in
    asking for the Facebook password, it becomes incumbent upon HR to put
    extra security in place on those records. Not only do those passwords
    become a huge temptation for everyone with access, they are another
    layer of liability in the event the files are hacked.

    The company could be liable if someone (another disgruntled employee, an
    HR Intern with an axe to grind, a closet identity thief) broke into
    that file and used those passwords to gain access to an employees’
    private banking or other financial files. Well, yes, they “shouldn’t” use the same password. But some do. And yes, that’s dumb. But some do. And it’s still in the HR Department’s court to protect the password.

    You have failed the first test of evidence. You haven’t justified the
    need for a password in the first place. Why do you need their password?  Yes you should have
    the password for work email, and the password for a company Facebook or
    LinkedIn page, but asking for the personal password is beyond the pale
    and totally unnecessary. Not to mention unconstitutional: The Fourth Amendment to the Constitution specifically states:

    The right of the people to be secure in their persons,
    houses, papers, and effects, against unreasonable searches and seizures,
    shall not be violated, and no Warrants shall issue, but upon probable
    cause, supported by Oath or affirmation, and particularly describing the
    place to be searched, and the persons or things to be seized.

    Quite frankly,  if your interviewing skills and background checking systems are so poor you need to
    constantly monitor the people you hired in case they may say a bad thing
    about you – then you need to fix your in-house systems, training programs and your
    background checking structures.

     We managed for hundreds of years to get the information we needed on
    employees before hiring them. Sometimes we made good choices and
    sometimes we made bad choices. Oh well. Some people could have stellar
    reputations on Facebook, be wonderful interviewees, sound good on paper
    – and still be horrible employees. It happens. Some people made bad
    choices in their teens and later years, and yet they are amazing employees. Going into an
    account and slogging through old posts is a useless and possibly
    actionable offense.

    If you’re so lost that getting FB passwords is your last resort, call me. I’ll teach you how to be a better interviewer!

  • pedestrian_pen

    Two points:

    1. It turns out that big brother is not the authoritarian government; it’s the HR guy (or company supervisor) who wants to not hire someone or wants to fire someone because of a FB picture of that person drinking a beer at a wedding.

    2. Maybe we should consider turning this concept around. Take anyone at the company who wants to make routine employment decisions based on FB info and let them find employment elsewhere.

  • Berkbo58

    Wouldnt just be essier if They ask to friend you on Facebook. Its a two way street here. maybe the prospective employee wants to know the type of boss he or she will be dealing with.

  • Derek Britz

    If you followed these arguments in favor of unlimited discovery pre-employment, you could apply them to me giving you the keys to my house to make sure you have full discovery.

    Your arguments would also insinuate that there is no truly free speech because any speech in any venue at any time in the past could be fair game for denying employment.Listen to your gut – if it feels like an unreasonable invasion of privacy – it is. Stop. Now. Don’t ever think of doing it. It is wrong. Period.

  • Brittany

    Or you could build a sound social media policy and provide all employees training in social media etiquette. Teach them what they are or are not allowed to say about your company online, if they are or are not allowed to interact with customers via personal social media profiles, etc. Provide training, have a contract.

    I don’t care what my staff does outside of work as long as it is not illegal, they are not wearing my company’s logo and not at a professional function representing my company. Transparency is a must at my company but not to this extent…

  • Harry van Rees

    Here are my 3 statements to consider:
    1. At home I get drunk
    2. At home I have sex
    3. At home I will almost exlusively do only the work I take on myself

    Our personal life is designed to be different from work life. How can we take anyone serious who thinks there’s anything to learn from facebook that they can’t learn by talking to the same person?

  • Mike Shrader

    To even think about using information from social media just proves the point that anyone can go to law school but still lack practical, common sense. There is simply NO need to ever ask for an employee or applicant for their private password.

  • Mikehcm

    To een thinkbout asking an applicant for their Password to any media just illustrates that anyone can go to law school if they have the money and not opearn anything. Unbelievable to even suggest the idea as being reasonable is an abdication of an individuals privacy or common sense. Ever hear of ID theft??? No one should ever release their passwords to an employer and any employer that ask or such is surely incompetent.

  • devay

    This guy is a complete moron.  My passwords are non of your business and my Facebook page is none of your business because I am allowed to have a personal life.  If you want to check on my social media skills during the interview process feel free to ask if I’m on LinkIn.  Otherwise I’ll take my MBA to a company with some common sense.

    • devay

      Now I look like the moron because I type fast when I’m pissy.  Oh well at least I’m not Bill Nolan….

  • Cencalsac

    I think the other consideration that gets overlooked is that this isn’t solely about the applicant and the employer.  When I opt in to be a “friend,” I’m allowing my friend to see my postings, pics, etc.  I’ve not consented to letting their prospective employer see them. 

    I have friends from all walks of life.  If I opened my page to you right now you’d see everything on my wall from friend’s ramblings about political issues, pics of friends playing beer pong, cute pics of kids on an Easter egg hunt, and a couple gay friends sharing pics of their honeymoon vacation.  An employer not only shouldn’t base their employment decision on what they see on that page, but, more importantly, none of those friends linked in with me with the idea that those postings were being viewed by some stranger in an HR office.  An employer that doesn’t understand the relevance of that, IMHO, is essentially asking you to betray the trust of your friends for the sake of the job opportunity.

  • Clausji

    Absolutely no, if the profile of the employee candidate is public then look at it, if it is private thats what it means, private. Do you want also my online banking account to see my spending history? Congress should be looking into this matter since is absolutely outrageous.

  • Norm

    Obviously written by a guy who has no clue about social media and current modes of communication. Email is passé, especially if you index younger. This is akin to asking for your email password or asking if they can put a webcam in your home. An employer that asks such a dumb request is probably not worth working for in the first place. As previously mentioned, the logistical challenges this would place on the employer in regards to security and privacy are enough to discourage this misguided stream of thought…

  • http://www.facebook.com/profile.php?id=504425493 Robert J Shoaf

    There has got to be some give and take. The employee-employer relationship is like any other relationship, they are build on trust and information. Employees looking to offer their services for a fee (a paycheck) need to realize they are in the suppliers shoes and must give reason for employers to pay for their services. The relationship is very close and 

  • LebHR

    I was happier to hear about Maryland’s state action though banning such acts, as much as we advise the job seeker to have a clean profile, yet such involvement in facebook password doesn’t make sense!

    ——————-Check out our latest post Stress at WorkAre you a job seeker, employee, manager, or HR fanatic? Visit LebHR.com for info and tips.LebHR – The Lebanese Human Resources Community

  • Lifesjester

    This is an absolutely asinine article and argument.  To say that it is ok just so that a business can make a better hiring decision is putting corporate money over personal privacy. 

    Unless you are attempting to get a job with the government that requires secret or top secret clearance (and maybe not even then), this should never even be suggested as acceptable. 

    That is like a company saying in the interview, “give me the key to your house and wait here, I will be right back”  What????

    Not to mention that not everyone is in tune with all the inside jokes that people post, be it pictures, videos or comments. 

    I post many videos and quotes of things that I don’t agree with.  Many times I DO NOT even write anything pro or con, just post it.  The people who know me never question my motive for the post, just comment on it.  The peoples reactions to the posts can be quite humorous.  To others, it may seem like I support it when it is the exact opposite.  If a potential employer went into my account, I would have a lot of explaining to do or they would never even give me that chance.  All due to incorrect assumptions.

    My Facebook account is nonsense to me and I treat it as such.  However, it is MY FACEBOOK ACCOUNT!  You can not have the key to my car, my house, my Facebook or any other account.  Your money is not even close to being worth more than my privacy. 

    This article would be perfect to be posted as a Yahoo News article as it proves that intelligence is not a requirement to be a lawyer and/or a writer.  Not a cheap shot against you personally William, just a general observation.

  • http://www.facebook.com/people/Chris-Worden/100003626587997 Chris Worden

    I’ll give you my password in exchange for your bank account information, pin number, etc.

  • Scruffy

    I know I’m several months late with this but here are some thoughts no one else has brought up.

    This tells me several things about this potential employer that are all negatives.

    1) Legal agreements are meaningless. If they are asking you to violate a legal agreement with an organization or individual now, they will expect you to violate other legal agreements or laws as an employee. I have worked for one that did both of these things.

    2) The person asking you has no honor or personal integrity. They should know that they are asking you to violate a legal agreement. What sort of people are these? Better search for BBB complaints as well as civil suits, esp. regarding rights violations.

    3) They don’t respect other’s privacy and rights. They will not change once you are working for them. Do our most cherished beliefs as a people mean that little to them?