Do you have a blog, Twitter handle, Facebook page, or other online presence? Most people use social media to some extent, whether to post pictures, air opinions, stay in touch with family and friends, or get involved in communities of people with similar interests. Of course, some people also use social media to air offensive views, post pictures of themselves drunk or naked (or both), or show off their extensive weapons collections.
The opportunities the Internet offers for self-expression can become a problem once you embark on a job search. According to surveys, around 70% of all employers check out applicants on the Internet when hiring. Employers report rejecting job applicants when they find references to drug use, heavy drinking, sexually offensive materials, violent imagery, or anything else that reflects poorly on the applicant.
In recent years, some employers have started asking applicants to provide their passwords and log-in information for social media sites as part of the interview process. An employer with access to an applicant's password can bypass privacy settings and see material the applicant intended to make available only to chosen viewers.
More than 20 states have passed laws making it illegal for employers to ask applicants to hand over their usernames and passwords to their private social media accounts. Likewise, applicants cannot be forced to pull up their social media accounts during an interview or tell the employer about the contents of their social media pages. Even in states without such a law, asking for social media login information might run afoul of general state privacy laws or federal computer privacy laws.
To learn the rules in your state, see our state chart on social media password requests by employers.
The state laws on social media passwords are intended to protect social media pages that applicants have chosen to keep private. If you have publicly posted information about yourself without bothering to restrict who can view it, an employer is generally free to view this information. However, employers still need to follow other employment rules.
Antidiscrimination laws. An employer who looks at an applicant's Facebook page or other social media posts could well learn information that it isn't entitled to have or consider during the hiring process. This can lead to illegal discrimination claims. For example, your posts or page might reveal your sexual orientation, disclose that you are pregnant, or espouse your religious views. Because this type of information is off limits in the hiring process, an employer that discovers it online and uses it as a basis for hiring decisions could face a discrimination lawsuit.
Background check laws. If an employer hires a third party to investigate your social media footprint, for example by ordering a comprehensive background check, it must follow the Fair Credit Reporting Act (FCRA) and similar state laws. The FCRA requires employers to follow certain procedures, including getting an applicant's written consent and providing certain notices if they decide to reject an applicant based on the contents of a background check. (To learn more, see our article on background checks in employment.)
Off-duty conduct laws. Several states have laws that prohibit employers from taking negative action against employees based on their legal conduct while off-duty. Some of these laws also protect applicants. For example, in New York, it is illegal for an employer to refuse to hire an applicant because of his or her legal political activities or consumption of legal products, such as tobacco or alcohol. An employer that discovers this type of information on social media may not act on it.
Setting your social media accounts to "private" is generally a good idea, especially if you're in the middle of a job search. Still, there's no guarantee that an employer won't be able to see your profile.
Like anyone else, employers are legally prohibited from trying to hack into your account, whether by trying to guess your password, using a "phishing" scam, or by any other means. But if you have "friends" or "followers" at the company, those individuals can see your posts and potentially share them with others without breaking the law.
If you are about to embark on a job search, consider whether you might need to clean up your online act. Of course, with cached sites and historical searches, you really can't entirely undo your past posts. But take a close look at your publicly accessible information and make sure it's ready for prime time.
Also, mind those privacy settings. If you have information or material you want to leave up but don't want employers to see, at least put it behind a privacy wall. Limit your privacy settings so that only your approved friends can see it. If others have posted photos that might paint you in a negative light, ask the poster to remove it. If that doesn't work, you can at least untag yourself in any photos that you don't want potential employers to stumble across.
Finally, if you've left an unfortunate digital trail, be ready with an explanation. Even if you are able to take down your original indiscrete post, it may have been reproduced or quoted elsewhere, others may have commented on it, or it may simply live on forever in the digital wayback machine. In this situation, the best you can do is to try to minimize its impact by having an explanation (of your youthful indiscretions and your changed ways, for example) queued up if you need it.
If your employer is demanding your social media passwords in violation of state law, or you've been the victim of unlawful discrimination based on something you've posted online, contact an employment law attorney to discuss your legal options.