Too Much Information? States Ban Employers From Requesting Social Media User Names & Passwords

Author:Mr Brian Clifford and Stanley E. Graham
Profession:Waller Lansden Dortch & Davis

Originally published in DRI TODAY

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...

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