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Asking Job Candidates for Facebook Passwords…Is it Legal?

March 22, 2012

There have been reports in the media that in the United States some potential job candidates are being asked for their Facebook passwords as a part of the interview process. The reasoning behind this is that some companies are not satisfied with a cursory glance over a candidates social network via a Google search any more. They want to know all about the prospective employee, and want a chance to have a good look around the candidates Facebook profile. As one commentator put it… “It’s akin to asking for someone’s house keys.”

People, no doubt, will have different views on whether such a question is and fair and reasonable however here is a short outline of the legal ramifications of such a question. In Australia, privacy and particularly anti-discrimination laws afford employees and potential employees protection if an interviewer or employer is to ask a question such as this. Most of our Facebook profiles contain information that can be very personal in nature and can disclose how old we are, what our religious beliefs may be, whether we are a parent, married, gay or many other personal attributes. In addition there can be many photos, shared with friends, of family and children, as well as other social events. These are all things that are referred to in an employment law context as ‘irrelevant factors.’ That is, they are factors and circumstances that should have no bearing on a persons performance in an interview and have no bearing on how well they can perform a certain job. They should not be taken into account, and should not be asked about in an interview situation. In our view, asking for someone’s Facebook account information is tantamount to asking the person direct questions that are personal and discriminatory in nature.

For employers, it is important to keep this in mind, and never ask a potential candidate about things such as race, ethnicity, sex, sexual preference, religion, pregnancy, national origin, age, disability and marital/family status. Keep questions professional and strictly related to the performance of the role. In addition, employers need to be careful that if they do use social networking sites for the recruiting and vetting of potential candidates, that they do not take into account any ‘irrelevant factors’ when making decisions about a persons suitability for a role. If employers are concerned about the use of social media by current employees, what they can do is consider putting a social media policy in place which makes it very clear as to what behaviour and statements are allowed on social networking sites about the employer. For example, a social media policy may prohibit an employee from speaking disparagingly about their workplace.

Guest post by Danica Leys, Solicitor and Andrew Bland, Principal of BlandsLaw

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2 Comments
  1. Justin Carman permalink

    Setting aside any potential for discrimination, such a request would generally be unenforcible given as the act of providing the user ID/Password would no doubt be in breach I the conditions of use of that service. An employer cannot ask a candidate to breach other agreements already entered into, particularly ones that might also infringe on other unrelated 3rd parties. My recommendation to anyone who experiences such a request Is to have it made to them in writing and then seek employment elsewhere. Such employers would behave no better once you have the job an in my opinion would not have the kind of internal corporate culture anyone would enjoy working in.

    • Hi Justin, thanks for your comment and whole heartedly agree with all your observations. One of the problems we’ve been discussing in the firm for candidates, is that of being caught off guard. Many candidates may not be familiar with their legal rights or may actually really need the job and so be prepared to divulge such information. Although, being asked for usernames and passwords should ring alarm bells!

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