LEGAL MATTERS: Is Your Employer After Your Facebook Password?

Friday, May 11, 2012

Susan G. Pegden and Sean P. Feeney, GoLocal Contributors

If you're asked for your Facebook password during a job interview, do you need to hand it over?

The recently revealed practice of employers asking applicants for Facebook passwords has raised concern, ire and eyebrows in courtrooms, among lawmakers and job seekers who say it flies in the face of fair employment practices and privacy rights.

Most people know that employers are not allowed to ask their age; whether they are married; have children; if they have a disability; or what religion, if any, they practice. But what do you do when an employer, in an attempt to skirt the law, asks for your Facebook password? As many applicants are finding out, there is no good answer.

Congress takes steps

Last month, Sen. Charles Schumer (D-NY) and Sen. Richard Blumenthal (D-Conn.) asked the Federal Justice Department (DOJ) and the Equal Employment Opportunity Commission (EEOC) to investigate whether requesting Facebook passwords violates the Stored Communications Act or the Computer Fraud and Abuse Act. The Stored Communications act bars unauthorized access to an “electronic communication service” or a “remote computing service”. The Computer Fraud and Abuse Act bars unauthorized access of computers that belong to certain institutions, the government and other computers used for business in interstate commerce.

Recently, Maryland state lawmakers took the proverbial bull by the horns and passed legislation barring employers from requesting these passwords. Other states, such as Illinois and Washington, have bills in the hopper as well.

To date, however, Rhode Island has no proposed legislation, forcing Rhode Islanders to make some tough decisions – none of which are good.

What are your rights?

Applicants can refuse to provide the password and most likely walk out the door with no hope of ever having a second interview, much less a job.

In the alternative, they can provide the employer with the password. If the applicant is subsequently not hired, the question then becomes whether the court will find the employer disobeyed the law barring them from asking for protected information. Furthermore, can it be proven that the decision not to hire was based on that protected information?

What are an employer's risks?

It should be noted that the obvious correlation is that employers who ask for these passwords face potential liability. Use of the information for employment decisions may violate civil rights, privacy, financial practice and/or equal protection statutes. While it may seem to be a cunning way to find out what an applicant is really like, the downside could be tremendous. Courts have found that the National Labor Relations Act (NLRA) provides protection to employees in certain circumstances when the employee uses Facebook to complain about the condition of the employment.

The foregoing is offered for informational purposes only and is not legal advice nor does it create an attorney-client relationship.

Susan G. Pegden is a litigation associate with the Law Firm of Hamel, Waxler, Allen & Collins in Providence. She is admitted to practice in Rhode Island and Massachusetts and is a member of the Board of Governors of the Rhode Island Association of Justice (RIAJ).

Sean P. Feeney is a partner with the Law Firm of Hamel, Waxler, Allen & Collins. He is admitted to practice in Rhode Island, Illinois and Wisconsin. Mr. Feeney is a former special counsel to the City of Providence, military prosecutor with the United States Marine Corps and Special Assistant United States Attorney for the Central District of California.