Social media has come to play an increasingly important role in the hiring process of new employees. Employers are scouring Facebook, Twitter and other social networking websites to weed out applicants. Recent reports have shed further light on this practice. Some employers have gone so far as to ask applicants to provide them with their usernames and passwords to their personal social media accounts or have asked that applicants log into their accounts from a company computer during the interview. Employers who are engaging in this practice should be aware that Maryland has become the first state to pass a bill prohibiting this practice, entitled the User Name and Password Privacy Protection and Exclusions Act, and other states are considering similar legislation.
The Maryland bill provides that an "employer may not request or require that an employee or applicant disclose any user name, password, or other means for accessing a personal account or services through an electronic communications device", which includes computers, telephones, personal digital assistants and other similar devices. Upon its signing by the Governor, the bill will take effect on October 1, 2012. Notably, however, the bill does not provide that employees and applicants who were asked for their user names and passwords have a private cause of action against their employers.
Additionally, several states, including California, Illinois, Michigan, Minnesota, New Jersey, New York, and Washington, are considering proposed legislation that will specifically prohibit employers from making requests to access social media accounts. In Michigan, the bill prohibits an employer from "request[ing] an employee or applicant for employment to disclose access information associated with the employee's or applicant's social networking account." Unlike the Maryland bill, the Michigan bill does permit an individual to "recover actual damages or $1,000.00, whichever is greater, and reasonable attorney fees and court costs." Further, the bill makes requesting such information a misdemeanor punishable by imprisonment or a $1,000 fine, or both.
Aside from being aware of the passed and pending legislation, employers should understand that reviewing the social networking accounts of prospective employees puts them at risk to claims that decisions not to hire were unlawful discrimination or retaliation for activity that is protected by law. Existing laws prohibit employers from basing their hiring decisions on a person's age, race, national origin, religion and marital status. In Michigan, the Elliott-Larsen Act also prohibits discrimination based on height and weight.
Social media has allowed employers to gain more access about potential employees than ever before. But care needs to be taken to make sure that federal and state laws are not violated either during the employment screening process or thereafter during employment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
