Last week, as reported on MyNorthwest.com, a Washington lawmaker introduced a bill that would make it illegal for employers to require applicants or employees to fork over Facebook passwords as a condition of employment.
It seems slightly convenient to me that all of this hullabaloo over employers requiring Facebook passwords (see our March 26th blog) occurs right when Facebook is planning its IPO, but I suppose all of the press is simply coincidental.
Let me first go on record, before we receive a host of complaints, that I believe people should have basic privacy rights. Although I question how much privacy one expects when sharing every detail of your life in your "private" Facebook account to the 600 "friends" whom you have probably never even met in person, especially where any one of your so-called friends could re-post anything you say.
Let me second go on record that I think that it is a bad practice for employers, as a blanket policy, to check applicants’ Facebook pages or otherwise check into their Internet presence. This is true largely because of all of the information employers may find out about an applicants’ protected class, such as they belong to a church group, are a minority, have a disability, etc.
I have been convinced in certain circumstances that it is not a bad idea. For example, we once had a client who hired a child psychologist. After announcing the person’s hire, they received an anonymous tip that the new employee had complaints from parents that he was sexually abusing his patients. In that case, a subsequent Google search and some creative, but legal, digging by the IT department revealed membership in a pedophile website. Needless to say that offer of employment was revoked.
The problem with the proposed Washington law is that it does not provide any carve-out for times when demanding Facebook passwords may be legal. What happens if an employer receives a complaint from an employee that another employee called them the "N" word on Facebook but that account is marked private?
In short, no jury is going to see it as a defense that the employer did not investigate the harassment simply because the state prohibited the employer from asking for the password to verify the complaint.