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Blumenthal

U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) are calling for action against employers who demand that job applicants turn over their Facebook passwords and other private information, calling it "a grave intrusion into personal privacy that could set a dangerous precedent for personal privacy and online privacy, make it more difficult for Americans to get jobs, and expose employers to discrimination claims."

The senators want the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) to launch a federal investigation into the trend, exposed in recent press reports. News stories have said that certain employers in New York and across the country are demanding the information from job applicants as part of the interview process – including photos and personal messages not shared with anyone else.  

"I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks,” said Blumenthal. “A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy. An investigation by the Department of Justice and Equal Employment Opportunity Commission will help remedy ongoing intrusions and coercive practices, while we draft new statutory protections to clarify and strengthen the law. With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information.”

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Schumer

“Employers have no right to ask job applicants for their house keys or to read their diaries – why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?” said Schumer. “In an age where more and more of our personal information – and our private social interactions – are online, it is vital that all individuals be allowed to determine for themselves what personal information they want to make public and protect personal information from their would-be employers. This is especially important during the job-seeking process, when all the power is on one side of the fence. Before this disturbing practice becomes widespread, we must have an immediate investigation into whether the practice violates federal law – I’m confident the investigation will show it does. Facebook agrees, and I’m sure most Americans agree, that employers have no business asking for your Facebook password.”

According to recent reports, employers are beginning to ask prospective employees for their Facebook passwords as part of the interview process before they are hired. In one case, the Associated Press reported a New York City statistician was asked for his Facebook user name and password so that the employer could review private components of his profile as part of the interview process for the job he was applying for. At least two other cases were identified where individuals who were applying for jobs were required to turn over Facebook passwords and user names in order to be considered for the job they were applying for, as well as a city that, until recently, required job applicants to provide access to their email accounts.

Facebook itself came out against the practice on Friday. In a post on its website, the social networking site said it was a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password. Facebook noted that the practice “undermines the privacy expectation and the security of both the user and the user’s friends” and could expose employers to lawsuits by exposing themselves to claims of discrimination if the employer discovers the individual is a member of a protected group (e.g., over a certain age) and then don’t hire that person.

Unlawful discrimination 

In their letter to the EEOC, Blumenthal and Schumer specifically raised concerns that by requiring applicants to provide login credentials to social networking sites, employers will have access to private, protected information that may be impermissible to consider when making hiring decisions and may be used to unlawfully discriminate against otherwise qualified applicants. Blumenthal and Schumer both made clear that comprehensive background checks for individuals are sometimes needed when seeking employment in law enforcement, at highly sensitive infrastructure sites, and with jobs where there is significant access to vulnerable populations. The senators pointed out, however, that requiring prospective employees turn over Facebook and social media user names and passwords, essentially granting access to private information that is not otherwise made public, could very well give employers information they otherwise cannot ask about, such as religion, age, marital status, pregnancy status, and a host of other protected classes that employers are not permitted to ask about or make hiring decisions based on.  

In their letter to the Justice Department, Blumenthal and Schumer pointed out that two courts have found that when supervisors request employee login credentials, and access otherwise private information with those credentials, that those supervisors may be subject to civil liability. Although those two cases involved current employees, the courts’ reasoning does not clearly distinguish between employees and applicants. Pointing to Facebook terms of service and the civil case law, the senators urged DOJ to investigate and issue a legal opinion as to whether requesting and using prospective employees’ social network passwords violates current federal law.

Blumenthal and Schumer also announced that they are currently drafting legislation that would seek to fill any gaps in federal law that allow employers to require personal login information from prospective employees to be considered for a job. The senators noted they are seeking additional legal opinions, from both the EEOC and DOJ to determine what protections currently exist and what additional protections are necessary


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