Can we ask applicants for their Facebook passwords?

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Question:

We are ramping up to make a number of new hires, so we are reviewing our application process. We always google applicants who get past the initial screening, and we look for them on social media sites as well. However, a lot of applicants use privacy settings to make their Facebook and other social media pages available only to their online friends. May we ask applicants to either log in and show us their social media pages or to give us their passwords so we can do so? 

Answer:

Requiring applicants to show you things they have tried to keep private is a recipe for legal disaster. You aren't alone in your desire to check out applicants online: Surveys show that about half of all employers do the same, and a larger percentage of professional recruiters. Who among hasn't succumbed to the urge to google? And, if applicants will hold positions in which they represent your company or otherwise play a role in its public image, it's only sensible to see how they choose to present themselves online. 

However, there are a couple of traps here for the unwary -- and it sounds like you are about to run headlong into one of them. More than half a dozen states flatly prohibit employers from requesting or requiring applicants or employees to provide user names or passwords for social media accounts. Generally, these laws also prohibit employers from requiring applicants or employees to access their accounts in front of the employer. The list of states considering or adopting this protection is growing all the time. And, Facebook itself has said that employers who engage in this practice could be legally liable. 

So what about just looking at whatever applicants have made publicly available? Your legal risk in this case depends on what information you find -- and what you do with it.

An online search can reveal plenty of information about an applicant, including information you are legally prohibited from considering in the hiring process. Let's say your applicant belongs to a support group for spouses of AIDS patients, posts frequently about her desire to have a dozen children, or belongs to a historically Black sorority. These are not things you would be entitled to ask about or consider in hiring (if the applicant chose to reveal them). Now you know them, however, and you'll have to make sure they don't play any role in your decision making process. If you decide not to hire the applicant, and the applicant claims discrimination, you will need to show that your decision was based on other facts. It can get complicated, as you can see. 

Some employers take extra care to avoid this risk by insulating the googlers from the decision makers. In other words, an outside recruiter or designated employee does the online search, then passes on only the information the employer is entitled to consider in hiring. The searcher has no further input into hiring decisions. This makes it easier to show that hiring decisions were based solely on sound business concerns, not illegal considerations. 

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