By Penelope Glover, Senior Associate
and Marisa Lincoln, Senior Associate
Pleasanton Office
There has been a lot of buzz recently about whether employers can demand employees or prospective employees to provide passwords to their private social media accounts. The buzz was undoubtedly associated, in part, with a proposed amendment to the Federal Communications Commission Process Reform Act of 2012, which was approved by the House of Representatives on March 27, 2012. The amendment would have enabled the Federal Communications Commission to prohibit covered entities from requiring job applicants or employees to disclose confidential social networking passwords to their employers or prospective employers.
The proposed amendment was rejected by the House of Representatives. Thus, employers may arguably continue to search public social networking sites and request employee and applicant passwords for private social media sites. However, is this practice a good idea?
On one hand, viewing social media associated with employees and applicants may demonstrate due diligence, particularly when the employer is an educational institution with obligations to students and the public. In this sense, a social media search may be akin to a standard background check. Instead of looking for red flags like convictions, the employer would be searching for yellow flags which may be associated with unprofessional behavior.
On the other hand, social media accounts and posts often contain the types of information which employers or prospective employers should not seek to obtain, such as marital status, sexual orientation, and health conditions. If employees or applicants are required to provide social media passwords or if an employer has a practice of searching public social media sites, employees or applicants may argue they were disciplined or not hired, for instance, because the employer used information it obtained from the social media account to unlawfully discriminate. An employee could also argue that the employer pressured the employee into providing the password, or otherwise invaded his or her reasonable expectation of privacy.
While an employer could take precautions to shield personnel decision-makers from any information obtained from a social media site, this may not be enough to dissuade a litigious employee or applicant. Consequently, each employer should consider this and other risks, and determine whether the potential benefit of accessing private social media accounts for the purpose of gaining additional information on its employees and/or applicants is worth the risk.
