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Can a Potential Employer Ask a Kentucky Job Applicant for Social Media Passwords?

1362248_businessman_with_the_notebook_3.jpgFacebook has become an international phenomenon with millions of users logged in around the globe. Some people have reconnected after years of no communication, and others have forged new relationships through shared friends and interests. As a result of all of this sharing of information, numerous privacy issues have arisen.

One of the latest issues is whether or not employers should have access to employees’ Facebook accounts. While a potential employer may see it as an opportunity to get to know an applicant on a more personal level, it could also lead to a potentially illegal situation.

When applying for a job, there are numerous subjects that should not be addressed by an employer. Applicants should not be asked about their age, marital status, number of children, religious background, or ethnicity. Denying someone a position based on any of these factors would most likely constitute employment discrimination, which is illegal under Title VII of the Civil Rights Act of 1964. Therefore, these topics should not even be brought up by a potential employer.

When an individual uses Facebook, it is under the assumption that the information posted will be viewed by friends and family members, not employers. So the subjects listed above that should not be discussed at a job interview will most likely appear on a Facebook page. Even if this information is not explicitly listed on the person’s profile page, it can normally be gleaned from reading posts and viewing photos.

Some prospective employers try to get around the sticky subject of asking for an applicant’s user name and password. After the ACLU questioned the Maryland Department of Public Safety’s practice of requiring user names and passwords from applicants, the agency changed its policy to requiring the applicant to log into social media sites during the interview. While this gets away from requesting passwords that people should not be asked to share, it still gives the agency access to information that may be covered under Title VII. Other companies have asked applicants to “friend” human resource managers, which also gives them access to the same information that could lead to discriminatory decision-making in the hiring process.

A few states have proposed legislation that would make the password request against the law. Kentucky is not currently among them. On the federal level, two senators have requested an investigation by the Department of Justice and the Equal Employment Opportunity Commission (EEOC) into whether this practice is against federal law.

In the meantime, what should Kentucky employees do if they are asked for their passwords? If possible, they should delay the request and speak to an experienced Kentucky employment attorney before deciding whether or not to share the information. If you have been asked for this information and were turned down for a job based on information from Facebook or another social media site, you may have been a victim or workplace discrimination and should contact the attorneys at Miller & Falkner to discuss the facts of your case and what action needs to be taken.

Sources:

Senators ask feds to probe requests for passwords; Associated Press; Manual Valdes; March 25, 2012
Job seekers getting asked for Facebook passwords; Associated Press; Manuel Valdes; March 20, 2012