A growing trend among employers is requesting applicants’ usernames and passwords to gain access to restricted social media in order to investigate applicants during the hiring process.  In response to this trend, Illinois and Maryland have each recently proposed laws that would essentially ban employers from requesting this type of information.  The main arguments for and against the proposed laws are centered around constitutional privacy concerns, however,  employers should consider that restricting their hiring personnel’s access to this type of information is not as harmful as some opponents have argued.

There are several federal statutes that prohibit employers from considering age, color, race, religion, sex, national origin, disability, medical conditions/information, family history, etc. in making employment decisions.  These laws typically provide that employers may not even elicit such information during the hiring process and sometimes even after an offer of employment has been made.  Social media, like Facebook, is likely to contain some or even all of this information for any particular person.  

For example, the Age Discrimination in Employment Act (ADEA) protects persons age 40 and over from discrimination in the workplace.  In most instances, employers may not ask when the applicant was born, when they graduated high school, or any other questions likely to elicit a person’s age.  A person’s age, however,  is almost always listed prominently on their Facebook ‘info’ page. 

Also, Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on race, color, religion, sex, or national origin.   In most instances, employers are prohibited from considering any of these attributes during the hiring process.  Again, all these are usually readily apparent on any given person’s Facebook profile.  

If employers are openly asking for usernames and log-in information for various social media during the hiring process, they risk an employment discrimination claim by a rejected applicant.  There are many ways to judge an applicant’s ability to perform a job without resorting to these types of social media investigations.  The proposed laws, however restrictive on employers’ ability to deeply investigate its applicants, may save employers heartache down the road.  

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