Banning Employers from Requesting Employee Social Media User Names/Passwords

Yes, you read that headline correctly, employers are now asking, in increasing numbers, for employee social media (like Facebook) user names and passwords. If that doesn't send chills down the spine of every American who proclaims to believe in a free country, or even the concept of privacy, I don't know what will.

Let's begin with what we already know about increasing intrusiveness from both government and corporate/employer interests: As of two years ago, Facebook reportedly receives up to 100 demands from the government each week for information about its users. AOL reportedly receives 1,000 demands a month. In 2006, a U.S. Attorney demanded book purchase records of 24,000 Amazon.com customers. Sprint recently disclosed that law enforcement made 8 million requests in 2008 alone for its customer’s cell phone GPS data for purposes of locational tracking.

Now let's get to the corporate side of this privacy creep. It was Facebook itself no less - a known enemy of privacy and the world’s biggest social networking site - that came out just a few days ago with a statement claiming it was alarmed by reports that some businesses ask potential employees for passwords in order to view private posts and pictures as part of the job-application process. 

Before I get to California State Senator Leland Yee's bill, proposed this week to ban this practice, let me continue with the initial reaction from two US Senators - New York Senator Charles Schumer and Senator Richard Blumenthal - to this hair raising practice. They have asserted the practice could violate federal anti-hacking statutes and have also, thankfully, asked the U.S. Equal Employment Opportunity Commission to examine the practice as well. 

As Bloomberg news lays out:

Blumenthal said that by requiring job applicants to provide login credentials, employers could gain access to protected information that would be impermissible for them to consider when making hiring decisions. Those include religious affiliation and sexual orientation, which are protected categories under federal law.

Facebook said on March 23 that accessing such information also could expose businesses to discrimination lawsuits. The company said it might ask policy makers to take action to stop the practice.

...

Facebook and other sites are already used by some potential employers seeking additional background on job applicants because of the personal information posted there. As Facebook has given users additional ways to protect that information from public view, reports have surfaced of employers asking job applicants to voluntarily give them access by providing personal login credentials.
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The lawmakers also asked the department to investigate whether the practice violates the Stored Communications Act, which prohibits intentional access to electronic information without authorization or in excess of authorization.

This reminds me a lot of the legislation that we (the Consumer Federation of California) supported last year - and was signed into law by Governor Brown - that banned the practices of employers checking prospective employees credit reports. Before I remind people a little more about why that was such a HUGE victory for both privacy and economic fairness, let me get to Senator Leland Yee's legislation here in California.

His legislation would stop employers from formally requesting or demanding employees or job applicants provide their social media usernames and passwords.

As the Yee rightly states, “It is completely unacceptable for an employer to invade someone’s personal social media accounts. Not only is it entirely unnecessary, it is an invasion of privacy and unrelated to one’s work performance or abilities. These outlets are often for the purpose of individuals to share private information with their closest friends and family. Family photos and non-work social calendars have no bearing on a person’s ability to do their job and therefore employers have no right to demand to review it.”

Rather than formally requesting passwords and usernames, some employers have demanded applicants and employees to sit down with managers to review their social media content or fully print out their social media pages.  

Yee's bill will also prohibit this practice.  

As I argued in defense of AB 22 (Mendoza) regarding so called "requests", and thus an employee's "choice" to say yes or no, when you're trying to get a job, especially in this economy, its not exactly "voluntary" when coerced by an employer that can fire you, or choose not to hire you.

As I pointed out last year, and it appears the same is beginning to happen with these kinds of employer requests, a person's credit rating (which have suffered due to the Great Recession) - also NOT a good indicator of a person's trustworthiness or work ethic - were being increasingly demanded by employers (in fact, a whopping 40% of the time!!). 

Evi­dence also suggested that some supervisors factor credit scores into decisions regarding promotion and evaluation of current workers. Could the same be said for Facebook account content?

In the case of credit ratings, there was also the consideration of the role credit agency fraud played in the housing bubble burst, subse­quent economic crisis and the reduced credit scores suffered by so many Americans. In that context, for an employer to discriminate against someone with a less than stellar credit record is unconscionable. Wall Street excesses and Congress’ weak re­sponse have built plenty of barriers between the jobless and their prospects for future employ­ment. Allowing employers to use credit checks to deny employment only serves as another obstacle to getting Californians back to work.

And to top it all off, credit reports are often inaccurate, and correcting mistaken information is a tedious, time consuming process, and in the meantime, the job applicant is harmed due to errors by credit reporting entities.

That was a great victory for California privacy and basic economic fairness...and so should this latest legislation from Leland Yee and his efforts to end the practice of employers demanding and/or requesting access to employee Facebook pages.

If interested, here's an interview I did on the Rick Smith Show last year regarding AB 22: