Should Employers Require Prospective Hires to Provide Access to their Social Media Profiles?

There has been recent buzz regarding the new trend among employers to require prospective hires to provide the company their are applying to with the username and passwords to their Facebook, Twitter, or private email accounts, or log into and browse said accounts in the presence of the interviewer, or friend the employer or a human resources representative so they can view the prospect’s social media profiles. Ostensibly, such a policy is designed to allow employers to get a look into the personal lives of prospective hires to ensure that they, say, are not involved in criminal activity, or otherwise undertake public activity that may reflect poorly on the company.

However, a firestorm has erupted over such policies, not only from privacy advocates who consider the practice too intrusive, but also over the questionable legality of the practice. Although the consensus of the “Facebook generation”, whether they are employees — or employers — is likely to be generally against the practice, given the large proportion of startup employees who are of the Facebook generation and the fact that every employee of a startup or small company reflects significantly on the company, policies requiring disclosure of access to prospective hires’ social media profiles may be something that some startups are considering.

I am of the opinion the practice is likely illegal; if it is technically legal, at the very least, the practice asks for more trouble than it is worth. Every employer knows (or should know) that there are facts about a prospective hire the company may not ask, such as the individual’s race, national origin, religion, martial status, family status, or sexual orientation, for example. However, information such as this may be found on or gleaned from a person’s social media profiles. In my view, asking a prospective hire for access to his or her Facebook profile is like asking about his or her religious affiliation or sexual orientation — the employer will learn the information either way.

If even the courts were to disagree with me, the practice still leaves employers at risk for litigation. For example, if an employer were to request and receive access to a prospective hire’s Facebook profile, and on that profile saw that the individual was of a different national origin, and then failed to hire the prospect, the prospect might launch a discrimination suit against the company on the basis that the company learned he or she was from a different country from his or her Facebook profile and then refused to hire him or her on that basis. Regardless of the merits of the suit, the company will still have to expend time and money addressing it, not to mention the bad press that will result from an employment discrimination suit. Moreover, by requesting access to a prospective hire’s social media profiles, the employer must take on the burden of protecting information from those profiles and securing it from leaking outside of the employer (which would most certainly constitute a violation of the prospect’s privacy), which is a burden that employers may not be willing or able to take on.

In any event, this week Congress introduced legislation that would make it illegal for employers to request access to a prospective hire’s social media profiles. Given the generally negative public reaction to this practice, it is likely that even this Congress will pass legislation on this issue fairly quickly. So for any company considering asking prospective hires for access to their Facebook, Twitter, or email accounts, I would discourage they initiate the practice. Instead, if businesses are concerned about employees’ social media profile reflecting poorly on the company, I would recommend that employers put social media policies in their employee handbooks requiring that employees refrain from making personal social media postings that disparage the company.