Can Employers Require You to Disclose Your Facebook Password?

If you’re looking for a job in this economy, or are worried about your job security, you’re probably aware that the current job market – with unemployment over 8%, and more people returning to the job search amid signs of improvement – generally favors employers. They have a large pool of highly-qualified candidates to choose from, and they know it. Over the last few years, employers are increasingly bold in placing new conditions on employment which most job applicants would consider onerous and/or distasteful just a few years ago.

One of the most striking examples of this phenomenon comes from this story: some employers are now asking job applicants to hand over their login credentials for social networking sites, and even email accounts. Also reported here.

Some job applicants have withdrawn their applications for jobs when asked to do this. However, it’s likely that many more felt that they didn’t have that option (perhaps it was their dream job, or they had been unemployed for a long time), and have reluctantly agreed to this.

But as you can imagine, many people see this as an unnecessary invasion of privacy, and a few state legislatures are currently considering bills that would outright ban this practice. According to the article linked above, Illinois and Maryland are currently mulling legislation to ban the practice. While I don’t know if legislative action is necessarily required to deal with this issue, I do think a good “Seriously? What the hell, guys?” is in order.

I understand the need to conduct basic background investigations of prospective employees in certain industries. However, employers were able to conduct thorough background checks long before the advent of Facebook, and, traditionally, there’s always been an unwritten understanding between employers and employees that what happens outside the office is, for the most part, none of the employer’s business.

And there were always commonsense exceptions to this rule. It was, and is, considered perfectly reasonable for an employer to fire an employee if the employee is arrested or convicted of a crime. If the employee drinks heavily or uses drugs on their own time, it definitely becomes the employer’s business if it interferes with the employee’s job performance, or potentially exposes employers to liability.

Maybe I’m just old-fashioned, but I honestly have no idea how an employer would ever come to the conclusion that this type of practice is acceptable. While there’s no denying that the Internet generally, and services like Facebook in particular, have changed how we view privacy, I don’t believe that we have completely given up any expectation of privacy online.

So, how should you deal with this question, if you don’t want to disclose this type of information? Obviously, that depends on what kind of stand you want to take, and how badly you need the job that you’re applying for.

One possible solution is to scour your Facebook page and remove anything that you might not want your employer to see, or set up a separate Facebook account for the consumption of employers.

Or, if you want to be a smart-alec, you could inform the interviewer that the Facebook terms of service prohibit you from sharing your password with anyone, for obvious security reasons. But maybe some employers are from another generation and don’t really know what they’re asking for when they ask an applicant to disclose their Facebook login credentials. Maybe they aren’t aware that many people (especially younger adults who are now entering the workforce) use private messages on Facebook as their primary two-way messaging service, largely replacing email and text messages. Those messages are meant to be private. That’s not too different from an employer asking for access to your email account, or to your personal diary.

And while it’s true that information posted on sites like Facebook can theoretically be made available to everyone, there are settings designed to give users control over who sees what. Many people who have a small circle of friends and family members on Facebook may post things on that site that they’re OK with those people seeing, but wouldn’t want it to be open to the whole world.

The constitutions of some states (California, for instance) have an explicit protection for privacy rights codified into their text. This is in contrast to the U.S. Constitution, which does not have a right of privacy explicitly written into it. The right to privacy is protected by the California constitution more strongly than it is in virtually any other state. The right applies against the government (the police, etc.), as well as private parties. This means that, in California, your constitutional right to privacy applies both against the state and private companies, including your employer. While I’m not an expert on how California courts have construed this right, it doesn’t seem unreasonable that this type of conduct might already be illegal there, and in some other states.

In the long run, however, I think evolving societal rules of what’s acceptable and what’s not will determine whether or not we, as a society, think that this type of conduct is acceptable. And as the job market improves, and employees regain a little bit of the leverage that they once had, employers will get over the sense that they can engage in this type of conduct with impunity.

In some cases, the law has advanced causes well before public opinion was behind them. School desegregation and the CivilRights laws of the 1960s are good examples. More often, however, the law trails public opinion. I have a feeling that, by the time any laws governing this practice are passed, public opinion will have ruled on it long ago, making the laws largely irrelevant.

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