Facebook and the dangers of ‘TMI’

A recent Associated Press article ignited debate over employers asking for potential employees’ social media passwords, the combination of letters and numbers that open the door to the presumably personal worlds of accounts on sites such as Facebook and Twitter....

Michelle Graff michelle.graff@nationaljeweler.com

The report set off a flurry of privacy-minded legislative action since first appearing in March. In April, Maryland became the first state to pass a law banning employers from asking for social media passwords; the bill is awaiting the governor’s signature.

Legislation also is being considered in a number of other states, including Minnesota, Illinois, California and Washington, and is under review on the federal level.

In addition, Facebook slammed the practice, noting in a blog by Chief Privacy Officer Erin Egan that it’s actually a violation of Facebook’s “Statement of Rights and Responsibilities” to share or solicit a Facebook password.

To begin with, it's worth noting that nobody is really certain how many private-sector employers are requesting applicants’ Facebook passwords or “shoulder-surfing,” asking an applicant log into their account during an interview in order to peek at their profile. (The AP report does note that the practice is utilized more for public sector positions, such as police officer or 911 dispatcher.)

After the AP story ran, a blog on U.S. News & World Report said that this perceived password-privacy invasion was, in reality, “extremely rare.” Wired also questioned how widespread the practice really is.

The attorneys I spoke to had differing opinions on its pervasiveness.

Joy R. Butler, a Washington-based attorney whose area of practice includes Internet law, said she has heard a number of anecdotes about employers implementing password-asking practices, particularly in the public sector. It has spilled over into the private sector as well, though Butler says she doesn’t have any statistics on exactly how widespread it is.

“I think it’s not being blown out of proportion. It’s a matter that needs to be addressed,” she says.

Conversely, Alastair Gamble, of Phoenix law firm Lewis and Roca LLP, says he has a sense the practice is not used as widely as the media might lead people to believe, though he allows that, “It may be going on all the time and I don’t know about it.”

One point that both attorneys agree on, however, is that employers need to tread very carefully when factoring social media into the hiring process. Don’t delve into potential employees’

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social media accounts on any level unless you have a solid, documented reason for doing so, they say.

Gamble says to him, the largest potential problem is that it makes employers privy to information such as a person’s sexual orientation, religion and marital status--factors that, by law, cannot be considered in the hiring process. “All of those things might be at the forefront of somebody’s Facebook page,” he says.

If an employer decides not to hire someone after looking at their Facebook page and learning that, for example, they are Muslim or gay, they open themselves up to a potential lawsuit, even if those factors didn’t play a role in their decision.

To try to avoid liability, Gamble says he advises his clients, instead of relying on Facebook, follow up with references, perform a criminal background check and/or institute a longer interview process.

Butler brings up another interesting angle--that having additional information about a potential employee puts the employer at risk because it gives them access to too much information.

This is a state better known in this heyday of Internet slang as “TMI.”

The more employers know, the more they can be held liable for if something goes amiss with a new hire. Without access to Facebook, the universe of information that the employer could know about their employees “shrinks a little bit,” she says.

Michelle Graffis the editor-in-chief at National Jeweler, directing the publication’s coverage both online and in print.