Nyemaster Goode, P.C.

Is Your Employer Your "Friend?"

By Randy Armentrout

On March 20, 2012, the Associated Press released an article entitled: "Is it OK for a job interviewer to ask for your Facebook login?"  The article reported about a New York company that requested a job applicant's Facebook username and password during an interview.  The article reported that the Illinois and Maryland legislatures are now considering laws that would prohibit public agencies from asking job applicants for access to the applicant's social network information.

The article has set off a flurry of discussion on whether it is appropriate or legal for an employer to request an applicant to provide access to the applicant's Facebook page.  Earlier today, Facebook added its own position to the discussion by issuing a statement.  Facebook states that it has "seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people's Facebook profiles or private information."  Facebook advises its users: "[Y]ou shouldn't be forced to share your private information and communications just to get a job." 

According to Facebook: "[I]t is a violation of Facebook's Statement of Rights and Responsibilities to share or solicit a Facebook password.   . . .  We'll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action . . . ."

This is just the latest episode in the debate about what information an employer may consider when deciding to hire someone.   Employers will always seek the most information lawfully available about an applicant.  Employers want to hire the most qualified applicant with the highest chance of succeeding in the position.   Keep in mind that employers are also charged with keeping the work place safe and protecting employees from harassment by co-workers.  This must be balanced with what an employer may learn on an applicant's social network sites such as age, race, religious beliefs, and potential disabilities, which an employer may not consider when hiring.

Whether an employer's request for access to an applicant's Facebook page is legal (whether it is appropriate will likely be debated ad infinitum and ad nauseum) will likely come down to whether the information sought is necessary to the business and reasonably related to the job being filled.  With regard to pre-employment testing, decisions under the Americans with Disabilities Act have already limited employers to conduct only testing that is related to business necessity.  Further, an employer may not seek a credit report of a candidate for employment without obtaining written permission.

Currently, there is no legislation pending in Iowa in this area.  Stay tuned.


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