By Michael Lentz, Wagonheim Law Attorney
The Twitter-verse and the blogosphere are all, well, atwitter, this week over the growing number of employers that are asking for or requiring Facebook and other social media passwords from current or potential employees.
This trend should certainly remind us all to be extremely cautious with what we put online. In fact, we’ve previously addressed the issue in this blog, citing a Canadian divorce case in which the presiding judge ruled against one of the parties based in part on character determinations he made in reliance on the party’s postings.
Nonetheless, the idea of inspecting the online worlds of current and future employees is a terrible idea, for at least two reasons. First, and most importantly, a business should make hiring, retention, termination and promotion decisions without regard to age, race, gender, national origin, disability, sexual orientation, or physical appearance. Considering such factors in employment decisions will almost certainly leave the business on the wrong end of a successful lawsuit; even appearing to consider impermissible factors will likely lead to a lawsuit. While the business ultimately may prevail, the costs of such a lawsuit, both in dollars and in reputation, would certainly be enormous.
The best way to avoid (or prevail upon) a claim that your business considered an impermissible factor in its employment decision is to ensure that your business does not even have such information unless the information is absolutely required. Personnel folders and resumes should generally not include photos of the employee / applicant. Interoffice correspondence about the employee or applicant must exclude all reference to membership in any protected class. Your business should carefully document all its reasons for employment-related decisions.
Even seeking an employee’s Facebook password seems (to this litigator) to be an outright litigation magnet. When you ask for a Facebook or other social media password, you’re asking for a trove of information that should never be considered in making an employment decision. Imagine interviewing a potential employee and finding that he or she was just a terrible fit for your business and not right for the job in any way. Now imagine that a few weeks later, the same potential employee sues you and your business, claiming that you made your decision because of something you saw on his or her Facebook page. Again, you might ultimately prevail, but that’s just not a headache you want any part of.
Secondly, not only are you more likely to get your business sued if you solicit passwords, you’re also sending the wrong message to current and prospective employees. You’re sending the message that you don’t trust current or prospective employees, either to exercise good judgment or to properly segregate their work and personal lives. Imagine what your workplace will look like after a few years of hiring employees who learn, before you hire them, that you don’t trust them.
Urge your employees to post and tweet responsibly, always mindful of their association with your business. Consider whether your business would benefit from the adoption of a written social media policy. But leave your employees’ (and prospective employees’) passwords in their hands – doing otherwise can only get you in trouble and alienate your employees.
Need a refresher on best employment practices? Check out the ‘Avoiding Landmines’ in the Employment section of our Business Owner’s Pocket Guide!
Update (5/3/2012): From Time.com
“Today, Maryland Governor Martin O’Malley is signing into law the first piece of legislation designed to prevent employees or prospective employees from being forced to turn over their login credentials for social networking sites.
Sponsored by a bipartisan group of state senators and delegates, the new law will prohibit employers from punishing or firing workers who don’t want to share private Facebook profile information, and prohibits companies from not hiring a job applicant based on their refusal to provide information like their user name and password.
The new Maryland law, which goes into effect Oct. 1, is likely to be the first of several similar state-level laws. According to the American Civil Liberties Union, which supports this type of legislation, similar bills are working their way through the legislative process in Illinois, California, Minnesota, Michigan, and Massachusetts. According to “local news outlets in New Jersey, state assemblyman John Burzichelli also plans to introduce a password privacy bill in the next legislative session.”