On Wednesday, the Amendment to a larger FCC reform package that would have banned current or prospective employers from demanding employees to hand over personal passwords To Facebook was defeated.
The amendment was voted down 236 to 184. As PC World points out, only one House Republican voted in support of the amendment and only two house Democrats voted against.
It’s no secret that current and prospective employers use Facebook to investigate candidates; its become generally acceptable. Most users on Facebook know this are cognisant of the kinds of pictures and updates they post. In fact Facebook, and other social media sites have Privacy Polices that restrict sharing the passwords anyone else.
So what does this mean for the small business owner? Asking an employee to provide their social media passwords may create liability on the part of the employer. Fred Wolens, Facebook’s public policy manager suggested that it is not only an invasion of the employee’s Facebook account but also that of all their friends. He also pointed out that employers would not ask people for their email passwords which he thinks is similar, if not the same, to peoples’ Facebook passwords.
Technically, there is nothing to stop employers, legally, from requesting the employee’s password. However, be wary of the strain that may have on the working relationship with the employees. Also, from and Employment Law basis, given all the restrictions on what you can and can not ask a candidate during an interview, like pregnancy, marital status etc., how would gaining this same information from the Facebook account affect liability? It may open the door for potential employment discrimination cases.
As such, the small business owner should tread lightly and seriously consider the effects of requesting a social media password, until the issue is completely resolved.
Author: Jennifer Trowbridge, Stoecklein Law Group