Question: I believe I can learn a lot from an applicant’s Facebook page, but this applicant has security settings so I cannot see the page. Can I require the applicant to provide his password to me as part of the application process?
Answer: No. Many states have passed laws expressly prohibiting employers from requiring job applicants to turn over passwords to personal social networking sites such as Facebook. Even if you live in a state that has not yet caught up with this trend, this is a really, really bad idea.
Potential employers can learn a lot of information that they should not know about their job candidates when browsing their social networking sites. You probably know that you cannot make an employment decision based on any one of the numerous protected characteristics that apply to your state (likely including age, gender, race, national origin, disability, genetic information, possibly sexual orientation and familial status, or even political affiliation and military service, or arrest record). In most situations, you don’t need to know this information about an applicant to determine whether to hire him or her.
With regard to arrest record—some states prohibit the use of an arrest record that did not result in a conviction, but allow you to consider pending arrests not yet resolved. You could potentially see an older post along the lines of “Whew! Got that latest arrest dismissed. Took long enough!” Depending on where you are located, that statement may not be able to be the basis of an employment decision—but now you know about it.
In addition, some states, such as New York, have laws prohibiting employers from making employment decisions based on outside lawful activity—such as smoking cigarettes, drinking alcohol, or supporting a union. What if you see a picture of the applicant with a cigarette in one hand and a wine glass in another? What if you see a post “Going out today to support my Dad on the picket line. Come join me!”
If you peruse a Facebook page you are very likely to obtain such very information that you legally cannot use to make your decision. In addition to the above, you could see posts regarding the applicant’s mother’s recovery from breast cancer (prohibited genetic information)—or information about the applicant’s own disability (potential for disability discrimination). You could even see a picture that indicates race, national origin and gender which you may not have been able to glean from a resume alone. Once you know, it is going to be very hard to tell whether it colored your decision or not.
If you ask the applicant for his or her password, and the applicant turns it over, the applicant now knows that you are going to check the site—and what you are going to see. If that applicant is denied employment, he or she could claim that your “no hire” determination was based on something you saw on Facebook and could then sue you for discrimination based on that action alone. Thus, not asking for the password in the first place is a simple litigation avoidance technique that can be beneficial to your company.
Furthermore—privacy concerns can be raised when you start perusing your applicants’ personal, private and confidential social networking sites to make employment decisions. This could start the employee/employer relationship out on the wrong foot.
Go ahead and “Google Search” the applicant if you must – keeping in mind the risks associated with the information you may obtain—but do not press an applicant for their Facebook password.
