Social Networking and Recruiting – Should Employers Ask for Facebook Passwords?

Wage and Hour Defense
by Nicole Kamm
818.907.3235

Many employers these days are incorporating policies on social networking in their employee handbooks. Usually the policies address whether or not employees can use work computers and other devices to access personal accounts such as Facebook, Twitter, etc.

But according to a recent article from the Associated Press, there is a growing trend in which Human Resources professionals are screening applicants through their social media accounts by asking for passwords to Facebook and other personal pages, or requesting applicants log into their Facebook accounts on a company computer. Some recruiters are also asking applicants to add them as a friend on the social network.

This practice appears to be particularly common in the law enforcement, government or security sectors, though employers in other industries (such as retailer Sears) are now asking as well.

While the law does not currently address the direct implications of social media use in recruiting, there are a number of pending court cases involving social media and applicants/employees that should provide some guidance to employers. Some states, such as Illinois and Maryland, are also attempting to pass legislation that would prohibit employers from asking for an applicant’s social media login and password.

There is the additional concern that requesting an applicant’s password violates Facebook’s Terms of Service, which states: “You will not share your password…let anyone else access your account, or do anything else that might jeopardize the security of your account.”  Further, while employers generally can’t ask applicants about certain protected categories, such as race, religion, age, sexual preference, marital status, or disability, gaining access to a social media site would likely reveal such information without employers having to directly ask for it.

While an applicant may lawfully refuse a password request, in today’s economy, many choose not to so as not to risk losing the job opportunity.

So what is an employer to do?

The DOs and DON’Ts of Social Networking and Recruiting

According to a study commissioned by Microsoft and conducted by market research company Cross-Tab, about 70 percent of HR representatives report rejecting an applicant because of information found online. Many of the companies the representatives recruit for actually mandate online screening of candidates as part of the hiring process.

Employers using social media to s­creen job-seekers are advised:

1. If you use social media in your recruiting, use it consistently (i.e., conduct the same searches at the same point in the process for every applicant).
2. Don’t create an internet alias to gain access to a candidate’s personal profile. In other words, don’t set up a John or Jane Doe account to Facebook “friend” your applicants.
3. Keep a record of your search by printing the page or saving a screen shot, especially if the search reveals something which raises questions about the candidate.
4. Notify applicants that you will be reviewing any and all public social media accounts.
5. If you perform a background check, make sure you comply with the Federal Fair Credit and Reporting Act, as well as state regulations.

Use any information you obtain lawfully, and not to make any final employment decisions.

Nicole Kamm is an Employment Defense Attorney in the San Fernando Valley. You may reach her by calling 818.990.2120, or via e:mail: nkamm@lewitthackman.com

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