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Requiring applicant's social media access increases legal risks

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Requiring applicant's social media access increases legal risks

WASHINGTON—Calls are growing for federal and state legislation that would bar employers from requiring access to job applicants' social media postings.

While experts say relatively few employers now ask applicants for such information, those that do may be increasing their chances of being sued under current law.

Sens. Richard Blumenthal, D-Conn., and Charles E. Schumer, D-N.Y., last week called on the Equal Employment Opportunity Commission and the Justice Department to launch an investigation into a “new, disturbing trend” of employers demanding that job applicants provide their usernames and passwords to social networking and email sites.

The senators said employers want access to information such as private photos, emails and biographical data “that is otherwise deemed private.”

This “disturbing practice represents a grave intrusion into personal privacy that could set a dangerous precedent for personal privacy and online privacy, making it more difficult for Americans to get jobs, and expose employers to discrimination claims,” the senators said in a statement.

“I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks,” Sen. Blumenthal said. “A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy.”

In their letter to U.S. Attorney General Eric Holder, the senators said, “Two court decisions have found when supervisors request employee login credentials, and access otherwise private information with those credentials, that those supervisors may be subject to civil liability” under the Stored Communications Act. Although the cases involve current employees, “the courts' reasoning does not clearly distinguish between employees and applicants.”

In separate letters, the senators asked the Justice Department and the EEOC to issue a legal opinion on whether asking for passwords violates federal law.

A Justice Department spokesman declined to comment.

Carol Miaskoff, assistant legal counsel for the EEOC, said the senators' letter is “going to get prompt attention.”

Ms. Miaskoff said the EEOC is watching the issue “very closely.” While the senators' letter is clearly “elevating (the issue) within the organization,” it is too early to say how the EEOC will respond.

The senators also said they are drafting legislation that “would seek to fill any gaps in federal law” that allow employers to ask for personal login information from prospective employees.

State legislation that would prohibit this practice has already been introduced in California, Illinois and Maryland.

Beyond anecdotal information, however, the senators cited no statistical evidence on the subject. Ms. Miaskoff said she is unaware of data in this area, and other experts agree.

Legal experts say they believe relatively few employers ask for such information.

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“I haven't seen any real scientific, expansive studies done on the statistics, but my sense is we're not talking about a large number of employers who are engaging in the practice at this point,” said Michael C. Schmidt, a member of Cozen O'Connor P.C. in New York. “Not necessarily to minimize the concerns on the employee side of things, but I do think that the outrage and the perceived impact is overstated a little bit.”

Martha J. Zackin, of counsel at Mintz Levin Cohn Ferris Glovsky & Popeo P.C. in Boston, agreed. “I do think it's a big hullabaloo over not a lot,” she said.

However, Erin Egan, chief privacy officer for Palo Alto, Calif.-based Facebook Inc., had the opposite opinion.

“In recent months, we've seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people's Facebook profiles or private information,” Ms. Egan said in a March 23 Web posting. “This practice undermines the privacy expectations and the security of both the user and the user's friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.”

Ms. Miaskoff said that under current law, employers can expose themselves to EEOC charges—and potentially lawsuits—if they demand job applicants' passwords. This could occur in cases, for instance, where the employer learns through that information that the job applicant is a member of a protected class and the applicant does not get the job, she said.

“It's really not a big leap to think, "Now, gee, I didn't get the job because they knew about my religion.'” With an employer's access to Facebook, “it'll be easier than it sometimes is to otherwise challenge” a hiring decision, she said.

Employer attorneys agree that even without legislation banning it, asking for social media passwords is a bad idea.

“Employers who obtain and use this information run the risk of being worse off, not better off,” said Susan W. Kline, a partner with Faegre Baker Daniels L.L.P. in Indianapolis. “It's just not really relevant to the hiring decision, and once you've become aware of that information, it's difficult to mentally set it aside as you should.”

Ms. Zackin, who said she never recommends that employer clients try to get such information, also said she doubts the senators' proposal will become law.

In this political environment, “the chances are slim to none,” she said.