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Facebook Passwords? The Job Interviewing Trend; are Employers Entitled to Ask for Them???

Facebook Passwords? The Job Interviewing Trend; are Employers Entitled to Ask for Them???

Emerging is a somewhat unnerving trend of employers believing they are entitled to and doing so – requesting current or potential employees to provide their social media login details during interviews, or as a condition of their continuing employment. That is for example, their Facebook login and passwords. This issue has prompted United States senators to call for enquiry into the legality of the practice. [1] While there are presently no legal cases on the issue in Australia, the concern exists that the practice may be taken up by Australian Employers. [2]

But what are the legal implications of such requests, particularly in the context of a job interview?  Directly, there is no current law against asking an employee or potential employee to share their passwords.  However, there may still be legal ramifications for employers who choose to engage in such activity.

It’s not difficult to see why the practice would exist, as the information which could be obtained from your personal social networking accounts would be invaluable to employers looking to see past the veneer of perfection an employee tries to put forward on their resume and during interviews.  This is particularly true due to the strange effect of the internet by which online people feel freer to express controversial viewpoints, even without a veil of anonymity. [3]

It has been routine practice for some time for employers to conduct discrete online searches of potential employees, or to have employees ‘friend’ the organisation’s Facebook page or HR representative.  Of course, candidates have become savvier, and have privatised their social networks.  However, select employers unwilling to do without conducting these searches, and unwilling to do without such in depth knowledge, have begun increasing the intrusiveness of their checks.  There are reports of interview forms containing passages as blatant as, “Do you have any web page accounts such as Facebook, Myspace, etc. If so list your user name and password,”[4] as well as requesting the employees log onto and navigate through their accounts while the interviewers watch over their shoulders.

While the relative novelty of social networking may allow the privacy violations inherent such requests to be lost on some, by analogy the practice is the equivalent of asking for access to a person’s personal email account, their bank account details to see where and on what they spend their money, or even further asking for the key to their house for an opportunity to inspect its’ contents, and cleanliness.  The reason that the practice has been allowed to permeate into the interview room is no doubt due to the current economic conditions; few would be willing to refuse an employer’s request in fear that doing so will cause them not to be offered the role.

What About the Facebook Terms and Conditions

At the core level, the use of Facebook represents as a contract between Facebook and the user.  Under Facebook’s terms of use there is a condition that the user not share or divulge their password. [5]  Any person providing their Facebook password to an employer, or to anyone else for that matter, is therefore in breach of the Facebook terms and conditions and Facebook would have the right to terminate the services to that person (not that it is suspected or expected Facebook would).

To an employee placed in such a situation where they are asked to divulge their password (and where they are understandably uncomfortable doing so) the best approach to evading the request without looking as though they have something to hide is to point out that doing so would be in violation of their contractual agreement with Facebook and questioning whether the organisation would be so eager to hire someone who would so flippantly violate terms of their employment contracts.

At the same time, it is arguable that the employer requesting the password is liable under tort for having induced the person to breach the terms of their contract.  This action would only be available to the Facebook Corporation and not to the individuals whose privacy has been breached.  The tort requires the following:

“Direct persuasion or procurement or inducement applied by the third party to the contract breaker, with knowledge of the contract and the intention of bringing about its breach . . .” [6]

Clearly it would be difficult to establish that the employer knew of the breach they were inducing unless it was brought to their attention at the time of the request, and further it would be hard to imagine how a to remedy such a breach, or even what damages Facebook would suffer as a result of the breach.  Facebook has publicised that they are considering legal action against employers requesting potential employee’s passwords. [7] However they quickly clarified that they have no current plans to sue employers directly, which in itself it’s a contradictory statement. [8]

Gives Rise to Discrimination

A person’s Facebook page may contain a large amount of information about themselves which they would not normally put forward to a potential employer during a job interview.  This is of course what employers are allured towards discovering, however amongst this information may be certain topics which the employer should not to use in determining your suitability for a job; for example, the candidate’s sexuality, religion, age, relationship status or race.[9]  Accordingly, an employer who accesses a person’s Facebook page containing such information may open themselves up to potential unfair discrimination claims, if they turn down that person based on the results of their Facebook screening.

Ultimately, these two potential recourses are extremely limited and appear to do nothing more than provide minor disincentives or cautions to employers who might wish to engage in this practice.  Until further legislation is enacted to specifically address this issue, the safest course for job seekers may simply be to keep their social networking activities discrete.

Shan Auliff   – Senior Associate 

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[1] Anonymous, “Senators Question Employer Requests for Facebook Passwords”, Associated Press, 25 March 2012   at http://www.nytimes.com/2012/03/26/technology/senators-want-employers-facebook-password-requests-reviewed.html

[2] Meddows D, “Employers ‘can request Facebook passwords’” Nine MSN, 24 March 2012, at http://news.ninemsn.com.au/technology/8440585/employers-can-legally-ask-jobseekers-for-facebook-passwords

[3] Moses A, “Defence contractor suspended over neo-Nazi links,” Sydney Morning Herald, 6 April 2009 at www.smh.com.au/technology/technology-news/defence-contractor-suspended-over-neonazi-link-20090615-ca9t.html.

[4] Goessl L, “Op-Ed: Will using passwords and privacy settings matter in the future?”, 8 March 2012 at http://www.digitaljournal.com/article/320817

[5] “Statement of Rights and Responsibilities” Facebook, 23 March 2012 at https://www.facebook.com/legal/terms

[6] DC Thomson v Deakin [1952] Ch 646, cited with approval in Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470 at [439]

[7] “Protecting Your Passwords and Your Privacy.” Facebook, 23 March 2012 at http://www.facebook.com/notes/facebook-and-privacy/protecting-your-passwords-and-your-privacy/326598317390057

[8] Protalinski E “Facebook: No plans to sue employers asking for your password”, ZDNet, 23 March 2012 http://www.zdnet.com/blog/facebook/facebook-no-plans-to-sue-employers-asking-for-your-password/10802

[9] Anti-Discrimination Act 1991 (Qld) Section 7 and 14

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